Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 4 contracts
Sources: Merger Agreement (Webster Financial Corp), Merger Agreement (Webster Financial Corp), Merger Agreement (Sterling Bancorp)
Acquisition Proposals. Except as contemplated hereby, the Company shall not (a) Each party agrees that it will not, and will shall use reasonable efforts to cause each of its Subsidiaries and its and their respective officers, directorsdirectors and employees and any investment banker, employeesattorney, agentsaccountant, advisors and representatives (collectively, “Representatives”) or other agent retained by it not to) initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries take any action to facilitate, the making of, or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with or discussions concerning, any person concerning proposal or offer to acquire all or any significant part of the business and properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise (an "Acquisition Proposal"), (iii) or provide any confidential or nonpublic non-public information or data to, or have or participate in any discussions with, any person relating concerning the Company 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 6.13) third party in connection with or relating to any an Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 The Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties conducted heretofore with respect to any of the foregoing. In the event the Company receives an Acquisition Proposal. Each party will , it shall, subject to any confidentiality obligations imposed upon the Company in connection with such Acquisition Proposal, promptly (and in any event within twenty-four (24) 24 hours) advise inform Parent as to the other party following receipt of any thereof. Notwithstanding the foregoing, nothing shall prohibit the Company from (a) furnishing information to, participating in discussions and negotiations directly or through its representatives or entering into an agreement relating to an Acquisition Proposal with, any third party (including parties with whom the Company or its representatives have had discussions on any inquiry basis on or prior to the date hereof) who makes an unsolicited proposal or offer to the Company or makes an unsolicited request for non-public information about the Company (pursuant to appropriate confidentiality agreements), which could reasonably proposal, offer or request did not result from a breach of the first sentence of this Section 5.7, if the Company Board determines in good faith, after receiving advice from its financial advisors and independent legal counsel at a meeting of the Company Board, that such action is required for the Company Board to comply with its fiduciary duties under applicable law, (b) taking and disclosing to its stockholders any position, and making related filings with the SEC, as required by Rules l4e-2 and 14d-9 under the Exchange Act with respect to any tender offer or (c) taking any action and making any disclosure which the Company Board determines, after receiving advice from its financial advisors and independent legal counsel at a meeting of the Company Board, is required to be expected taken or made under applicable law (including, without limitation, laws relating to lead the fiduciary duties of directors), provided that at least 48 hours prior to the entry into or announcement of an intention to enter into a definitive agreement with respect to an Acquisition Proposal, the Company shall have provided written notice to Parent advising Parent of its intention to enter into a definitive agreement with respect to an Acquisition Proposal and specifying the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 4 contracts
Sources: Merger Agreement (Brining David R), Merger Agreement (Kci Acquisition Corp), Merger Agreement (Valley Forge Corp)
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries and its and their respective its Subsidiaries’ officers, directors, employees, agents, advisors Representatives and representatives (collectively, “Representatives”) Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to any Acquisition Proposal to, or (iv) unless this Agreement has been terminated in accordance with its terms, approve or recommend, or propose to approve or recommend, or execute or enter into into, any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition merger agreement, merger asset purchase or share exchange agreement, option agreement or other similar agreement (whether written or oralrelated to, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any an Acquisition Proposal. Notwithstanding the foregoing; provided that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party either Party receives an unsolicited bona fide written Acquisition Proposal and such Party’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to constitute a Superior Proposal, such party Party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, prior to (but not after) the BNY Shareholders’ Meeting or the Mellon Shareholders’ Meeting, as applicable, furnish or cause to be furnished confidential or nonpublic information or data to, and participate in such negotiations or discussions with with, the person Person making the such Acquisition Proposal if to the extent that the Board of Directors of such party Party concludes in good faith (after receiving the advice of its outside counsel, counsel and consultation 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 lawLaw; provided, provided further that, prior to furnishing providing any confidential or nonpublic information or data permitted to be provided pursuant to this sentencethe foregoing proviso, such party it shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and Party will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than the other party Party with respect to any Acquisition Proposal. Each party Party will promptly (and in all events within twenty-four (24) 24 hours) advise the other party Party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreementsthe material terms thereof), proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Party apprised on a current basis of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal as it may be amended, revised or supplemented from time to time, and of the execution and delivery of any confidentiality agreement between such Party and the Person making such Acquisition Proposal) and will provide to the other Party on a current basisbasis all material and information delivered or made available to the Person making such Acquisition Proposal to the extent such material and information was not previously furnished or made available to such other Party. Without limiting the foregoing, including each Party shall notify the other Party, orally and in writing, within 24 hours if it enters into discussions or negotiations with another Person concerning an Acquisition Proposal or provides non-public information or data to any amendments to or revisions Person in accordance with this Section 5.13. Each of the terms of such inquiry or Acquisition Proposal. Each party Parties shall, and shall cause Newco to, use its reasonable best efforts to enforce (and not waive or amend any provision of) any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal in accordance with the terms thereof. As used .
(b) Nothing contained in this Agreement shall prevent a Party (or Newco) or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the 1934 Act with respect to an Acquisition Proposal; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
(c) Nothing in this Section 5.13 shall (x) permit either Party to terminate this Agreement or (y) affect any other obligation of the Parties under this Agreement, “including the obligation to submit this Agreement to a vote of their respective shareholders. Neither Party shall submit to the vote of its shareholders any Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, Proposal other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyMerger.
Appears in 3 contracts
Sources: Merger Agreement (Mellon Financial Corp), Merger Agreement (Bank of New York Co Inc), Merger Agreement (Bank of New York Mellon CORP)
Acquisition Proposals. (a) Each Except as expressly permitted by this Section 7.07, 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 inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person 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 Person relating to any Acquisition Proposal (except to notify a Person that has made, or to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 7.07), 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 similar agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.137.07) 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 Sterling VoteCBC Shareholder Approval, in the case of SterlingCBC, or the Requisite Webster VoteSCB Shareholder Approval, in the case of WebsterSCB, a such party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Person making the Acquisition Proposal if the Board of Directors of such party concludes determines 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 lawLaw; 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 Person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person Person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Person other than the other party CBC or SCB, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twentyforty-four eight (2448) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person Person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used ; provided, that notwithstanding anything to the contrary herein, CBC or SCB may, prior to the receipt of the CBC Shareholder Approval, in this Agreementthe case of CBC, “or the SCB Shareholder Approval, in the case of SCB, grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow for a confidential Acquisition Proposal” meansProposal to be made to such party or its Board of Directors so long as such party promptly notifies the other party thereof (including the identity of such counterparty) after granting any such waiver, amendment or release and the Board of Directors of such party determines prior to the grant of such waiver, amendment or release in good faith, after receiving the advice of its outside counsel and, with respect to Webster or Sterlingfinancial matters, as applicableits financial advisors, other than that the transactions contemplated by failure to take such action would be reasonably expected to result in a violation of its fiduciary duties under applicable law.
(b) Nothing contained in this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of Agreement shall prevent a party or its Subsidiaries whose assetsBoard of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to such party’s shareholders; provided, individually that such rules will in no way eliminate or in modify the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) effect that any tender offer (including a self-tender offer) or exchange offer that, if consummated, action pursuant to such rules would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyotherwise have under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Southern California Bancorp \ CA), Merger Agreement (California BanCorp), Merger Agreement (Southern California Bancorp \ CA)
Acquisition Proposals. (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, (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, 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 6.137.13(a)) 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 Sterling Fifth Third Vote, in the case or Fifth Third, or the Requisite Comerica Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterComerica, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (provided that no such information or data relates to the other party) 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Comerica or Fifth Third, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal provided in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.keep
Appears in 3 contracts
Sources: Merger Agreement (Comerica Inc), Merger Agreement (Comerica Inc), Merger Agreement (Fifth Third Bancorp)
Acquisition Proposals. (a) Each party agrees that it will Veritex shall not, and will shall cause each of its Subsidiaries and use its reasonable best efforts to cause 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 Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex 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 the existence 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 the provisions of this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing6.12(a); provided, in the event that after the date of this Agreement and that, prior to the receipt of the Requisite Sterling Veritex Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Veritex shall have provided such party information to Huntington, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyVeritex. Each party Veritex will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Huntington with respect to any Veritex Acquisition Proposal. Each party Veritex will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to an a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, ) and will keep the other party Huntington 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 Veritex Acquisition Proposal. Each party Veritex shall use its reasonable best efforts efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, 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. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of a party Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyVeritex, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyVeritex, or (iii) a merger, consolidation, share exchange, exchange or other business combination, reorganization, recapitalization, liquidation, dissolution reorganization or other similar transaction involving a party Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyVeritex.
Appears in 3 contracts
Sources: Merger Agreement (Veritex Holdings, Inc.), Merger Agreement (Huntington Bancshares Inc /Md/), Merger Agreement (Veritex Holdings, Inc.)
Acquisition Proposals. (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, (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, 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 6.138.14(a)) 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 Sterling Pinnacle Vote, in the case or Pinnacle, or the Requisite Synovus Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterSynovus, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (provided that no such information or data relates to the other party) 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Synovus or Pinnacle, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal provided in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Pinnacle or SterlingSynovus, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 3 contracts
Sources: Merger Agreement (Synovus Financial Corp), Merger Agreement (Pinnacle Financial Partners Inc), Merger Agreement (Synovus Financial Corp)
Acquisition Proposals. (a) Each party agrees that it will From the date hereof until the termination of this Agreement, Target and its Subsidiaries shall not, and will shall cause each of its Subsidiaries and its and their respective officers, directors, employees, agentsinvestment bankers, advisors and representatives (collectively, “Representatives”) attorneys or other agents not to, directly or indirectly, (i) initiate, take any action to solicit, knowingly initiate or encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Target Acquisition Proposal or any inquiry which inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to an a Target Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) enter into any tender offer (including agreement with respect to a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyTarget Acquisition Proposal, or (iii) a mergerengage or participate in discussions or negotiations with, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party disclose any nonpublic information relating to Target or its Subsidiaries whose assetsSubsidiaries, individually respectively, or furnish to any Person any information with respect to, or otherwise cooperate in any way with a Target Acquisition Proposal. Nothing contained in this Section 7.2(a) shall prohibit Target and its Board of Directors from (x) taking and disclosing a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) under the Exchange Act, (y) waiving, or agreeing to waive, any provision of any stand-still or similar agreement in effect on the date hereof to allow a Person to make a Target Acquisition Proposal, so long as simultaneously with such waiver, such parties become subject to stand-still provisions at least as restrictive as those in the aggregateConfidentiality Agreement, constitute 25% or (z) prior to obtaining the Target Stockholders’ Approval, furnishing information, including nonpublic information to, or entering into negotiations with, any Person that has submitted an unsolicited bona fide written Target Acquisition Proposal made not in violation of this Agreement or any standstill agreement if, and only to the extent that (with respect to this Section 7.2(a) only):
(i) such unsolicited bona fide written Target Acquisition Proposal is made by a third party that Target’s Board of Directors determines in good faith has the good faith intent to proceed with negotiations to consider, and the financial and legal capability to consummate, such Target Acquisition Proposal,
(ii) Target’s Board of Directors, after duly consulting with Target’s outside legal counsel, determines in good faith that such action is necessary for Target’s Board of Directors to comply with its fiduciary duties imposed by applicable law,
(iii) contemporaneously with furnishing such information to, or entering into discussions with, such Person, Target enters into a confidentiality agreement with such Person on terms no less restrictive than those in the Confidentiality Agreement,
(iv) contemporaneously with furnishing such information to, or entering into discussions or negotiations with, such Person, Target provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person,
(v) such Target Acquisition Proposal is not subject to any financing contingencies;
(vi) Target’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such Target Acquisition Proposal is reasonably capable of being completed and may reasonably be expected to result in a transaction that is more favorable from a financial point of view to the holders of Target Common Shares than the Transactions, and
(vii) Target keeps Parent promptly informed in all material respects of the consolidated assets status and terms of any such negotiations or discussions (including the identity of the partyPerson with whom such negotiations or discussions are being held) and promptly provides Parent copies of such written proposals and any amendments or revisions thereto or correspondence related thereto; provided, that Parent agrees to execute a confidentiality agreement, in form reasonably acceptable to it, with respect to any such information delivered to Parent pursuant to this clause (vii), which confidentiality agreement shall be subject to Parent’s disclosure obligations arising under applicable law or securities exchange regulations.
Appears in 3 contracts
Sources: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Stone Energy Corp), Merger Agreement (Energy Partners LTD)
Acquisition Proposals. (a) Each party agrees that it will The Company shall not, and will cause each nor shall it authorize or permit any of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not Representatives to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate inquiries or proposals any Third Party (as defined in this Section 6.8) with respect to the submission of any Acquisition Proposal, Proposal (as hereinafter defined) or (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 or negotiations regarding, or furnish to any Third Party any non-public information with respect to, 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; provided, however, that the foregoing shall not prohibit the Board of Directors of the Company (or, if applicable, the duly appointed Special Committee thereof) from: (i) furnishing information to, or entering into discussions or negotiations 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 6.13) Third Party 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, Proposal by such party mayThird Party if, and to the extent that, the Board of Directors of the Company (or the Special Committee), after consultation with independent legal counsel (who may permit be the Company's regularly engaged independent counsel), determines in good faith that such action is required for the Board of Directors of the Company to comply with its Subsidiaries and fiduciary obligations to stockholders under applicable law; (ii) withdrawing or modifying its and its Subsidiaries’ Representatives to, furnish or cause recommendation referred to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Section 4.1(k) following receipt of a bona fide unsolicited Acquisition Proposal if the Board of Directors of such party concludes the Company (or the Special Committee), after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), determines in good faith (after receiving that such action is necessary for the advice Board of its outside counsel, and Directors of the Company to comply 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 to stockholders under applicable law; provided, that, prior or (iii) making to furnishing the Company's stockholders any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement recommendation and related filing with the person making such Acquisition Proposal on terms no less favorable to it than SEC as required by Rule 14e-2 and 14d-9 under the Confidentiality AgreementExchange Act, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly tender offer, or taking any other legally required action (within twenty-four (24) hours) advise including, without limitation, the other party following receipt making of any Acquisition Proposal public disclosures as may be necessary or any inquiry which could reasonably be expected to lead to advisable under applicable securities laws); and provided further, however, that, in the event of an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity exercise of the person making such inquiry Company's or Acquisition Proposalits Board of Director's (or the Special Committee's) rights under clause (i), will (ii) or (iii) above, notwithstanding anything contained in this Agreement to the contrary, such failure shall not constitute a breach of this Agreement by the Company. The Company shall provide immediate written notice to Parent of the other party with an unredacted copy receipt of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments Company's intention to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating furnish information to, or any third party indication enter into discussions or negotiations with, such person or entity. For purposes of interest inthis Agreement, (i) "Acquisition Proposal" means any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) proposal with respect to a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution tender offer or other similar transaction involving a party the Company, or its Subsidiaries whose assets, individually any purchase or in the aggregate, constitute 25% other acquisition of all or more any significant portion of the consolidated assets of the partyCompany, or any equity interest in the Company, other than the transactions contemplated hereby and (ii) "Third Party" means any corporation, partnership, person or other entity or "group" (as defined in Section 13(d)(3) of the Exchange Act) other than Parent, Sub or any Affiliates of Parent or Sub and their respective directors, officers, employees, representatives and agents.
Appears in 3 contracts
Sources: Merger Agreement (Bertuccis Inc), Merger Agreement (Ne Restaurant Co Inc), Merger Agreement (Bertuccis of White Marsh Inc)
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, and will cause each nor any of its Subsidiaries and its and nor any of their respective officers, directors, employeesemployees and Affiliates shall, agents, advisors and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it or acting on its behalf) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors, employees and Affiliates shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it or acting on its behalf) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or (iv) unless Proposal; provided, however, that nothing contained in this Agreement has been terminated in accordance shall prevent the Company or the Company Board from (A) complying 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 Rule 14d-9 and Rule 14d-2 under the Exchange Act with respect to and entered into in accordance with this Section 6.13) in connection with or relating to any an Acquisition Proposal. Notwithstanding ; provided, that such rules will in no way eliminate or modify the foregoingeffect that any action pursuant to such rules would otherwise have under this Agreement; (B) at any time prior, but not after, the Company Shareholder Approval is obtained, providing information in the event that after the date of this Agreement and prior response to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal, Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive in the aggregate to the other party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish than those contained in the Confidentiality Agreement; or cause to be furnished confidential or nonpublic information or data and participate (C) engaging in such any negotiations or discussions with the person making the any Person who has made an unsolicited bona fide written Acquisition Proposal if and only to the extent that, in each such case referred to in clause (B) or (C) above, the Company Board of Directors of such party concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that the failure to take such actions action would reasonably be more likely than not expected to result in a violation of its violate the directors’ 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 Law. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt individuals referred to in the first sentence hereof of the obligations undertaken in this Section 5.08. The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to an Acquisition Proposalinitiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of any proposal or offer and the identity of the person making such inquiry or Acquisition Proposal)thereafter shall keep Parent informed, will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with offers and the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more status of any class of equity such discussions or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partynegotiations.
Appears in 3 contracts
Sources: Merger Agreement (Banc of California, Inc.), Merger Agreement (CU Bancorp), Merger Agreement (Pacwest Bancorp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directorsdirectors and employees not to, employees, and will use its reasonable best efforts to cause its 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, (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, 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 nonbindingnon-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) 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 Sterling Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterDiscover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used .
(b) Nothing contained in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of Agreement shall prevent a party or its Subsidiaries whose assetsBoard of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided, individually that such rules will in no way eliminate or in modify the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) effect that any tender offer (including a self-tender offer) or exchange offer that, if consummated, action pursuant to such rules would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyotherwise have under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Capital One Financial Corp), Merger Agreement (Discover Financial Services)
Acquisition Proposals. (a) Each party Professional agrees that it will not, and will cause each of its Subsidiaries and its and their respective directors, officers, directors, employees, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Professional receives an unsolicited bona fide written Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Professional Shareholder Approval, and Professional’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, such party Professional may, and may permit its Subsidiaries officers and its 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 to the person making the Acquisition Proposal if extent that the Board of Directors of such party Professional concludes in good faith (after receiving and based on the written advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would reasonably be more likely than not expected to result in a violation breach of its fiduciary duties obligations to the Professional Shareholders under applicable lawLaw; providedprovided further, that, that prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party Professional shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and Professional will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than the other party Seacoast with respect to any Acquisition Proposal. Each party will Professional shall promptly (and in any event within twenty-four (24) hourstwo Business Days) advise Seacoast following the other party following receipt or notice of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Seacoast apprised of any related developments, discussions and negotiations on a current basis. Professional agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by Professional.
(b) Notwithstanding the foregoing, if Professional’s Board of Directors concludes in good faith (and based upon the written advice of its outside counsel and after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes or would reasonably be expected to constitute a Superior Proposal and that failure to accept such Superior Proposal would reasonably be expected to result in a breach of its fiduciary obligations under applicable Laws, Professional’s Board of Directors may at any time prior to the Professional Shareholder Approval (i) withdraw or modify (a “Change in Recommendation”) the Professional Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the Professional Directors’ Recommendation, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Board of Directors of Professional may not make a Change in Recommendation, and terminate this Agreement, with respect to an Acquisition Proposal unless (i) Professional shall not have breached this Section 4.12 in any respect and (ii) (A) the Board of Directors of Professional determines in good faith (after consultation with outside legal counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues or is reasonably expected to continue to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) Professional has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Person making such Superior Proposal)) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, Professional has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any amendments material change to or revisions of the terms of such inquiry or Acquisition Superior Proposal. Each party , Professional shall, in each case, be required to deliver to SBC a new written notice, the notice period shall use have recommenced and Professional shall be required to comply with its reasonable best efforts 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. As used in obligations under this Agreement, “Acquisition Proposal” means, Section 4.12 with respect to Webster or Sterling, as applicable, other than such new written notice. Professional will advise SBC in writing within twenty-four (24) hours following the transactions contemplated by this Agreement, receipt of any offer, proposal or inquiry relating to, or any third party indication of interest in, Acquisition Proposal and the substance thereof (i) any acquisition or purchase, direct or indirect, of 25% or more including the identity of the consolidated assets of a party Person making such Acquisition Proposal) and its Subsidiaries or 25% or more will keep SBC apprised of any class of equity or voting securities of a party or its Subsidiaries whose assetsrelated developments, individually or in discussions and negotiations (including the aggregate, constitute 25% or more terms and conditions of the consolidated assets of the party, (iiAcquisition Proposal) any tender offer (including on a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partycurrent basis.
Appears in 3 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Professional Holding Corp.)
Acquisition Proposals. (a) Each party First National Bankshares agrees that it, its Subsidiaries and each of their respective Affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative retained by First National Bankshares or any of its Subsidiaries) will (i) cease immediately and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal, and (ii) will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries or Affiliates is a party with respect to any Acquisition Proposal. From and after the date of this Agreement and until the earlier of the termination of this Agreement or the Effective Time, except in compliance with this Section 6.14, First National Bankshares will not, and will cause each of not permit its Subsidiaries and its and their respective directors, officers, directors, employees, agentsinvestment bankers, advisors and representatives (collectivelyattorneys, “Representatives”) not accountants or other representatives, agents or Affiliates to, directly or indirectly, (i) solicit, initiate, solicitor encourage any Acquisition Proposals; (ii) engage in discussions with third parties, knowingly encourage or knowingly facilitate inquiries negotiations concerning, or proposals with respect provide any non-public information to any person or entity in connection with, any Acquisition Proposal; or (iii) agree to, approve, recommend or otherwise endorse or support any Acquisition Proposal, (ii) engage or participate in any negotiations except that, if First National Bankshares receives a communication that it believes, after consultation 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 mattersmay upon clarification constitute a Superior Proposal (as defined below), 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 First National Bankshares may communicate with the person making such Acquisition Proposal on terms no less favorable communication to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right limited extent necessary to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before obtain the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly necessary clarification.
(within twenty-four (24b) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansmeans any tender or exchange offer involving First National Bankshares or any of its Subsidiaries, any proposal for a merger, consolidation or other business combination involving First National Bankshares or any of its Subsidiaries (other than the Southern Community Merger and the First Bradenton Merger), any proposal or offer to acquire in any manner an interest in excess of fifteen percent (15%) of the outstanding equity securities, or a substantial portion of the business or assets of, First National Bankshares or any of its Subsidiaries (other than assets or inventory in the ordinary course of business or assets held for sale), any proposal or offer with respect to Webster any recapitalization or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, restructuring with respect to First National Bankshares or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% any proposal or more offer with respect to any other transaction similar to any of the foregoing with respect to First National Bankshares or any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in other than pursuant to the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyMerger.
Appears in 3 contracts
Sources: Merger Agreement (Fifth Third Bancorp), Agreement and Plan of Merger (Fifth Third Bancorp), Merger Agreement (First National Bankshares of Florida Inc)
Acquisition Proposals. (a) Each party agrees that it will notFrom the date hereof until the termination hereof, the Company shall not and shall cause the Subsidiaries not to, and will shall use its best efforts to cause each of its Subsidiaries and its and their respective the officers, directors, employeesemployees and other agents and advisors (including, agentswithout limitation, advisors any investment bank, attorney or accountant retained by the Company) of the Company and representatives (collectively, “Representatives”) its Subsidiaries not to, directly or indirectly, (i) initiate, take any action to solicit, initiate or knowingly encourage or otherwise knowingly facilitate inquiries any Acquisition Proposal or any inquiries, proposals with respect or offers from any Person (other than Parent or Merger Sub) relating to any Acquisition Proposal, (ii) engage grant any waiver or participate in release under any negotiations standstill or similar agreement with respect to any person concerning class of equity securities of the Company or any Acquisition Proposal, Subsidiary or (iii) provide furnish any confidential or nonpublic information or data to, or have to or participate in any discussions withor negotiations with any Person that has made or, to the Knowledge of the Company, intends to make an Acquisition Proposal except to the extent the foregoing could not reasonably be expected to be relevant to an Acquisition Proposal; provided, however, that nothing contained in this Section 7.4(a) shall prohibit the Board from taking any person relating action described in clause (iii) above with respect to any Acquisition Person that has made an unsolicited (as such term relates to the period from and after the date hereof) bona fide written Superior Proposal or if, and only to the extent that, (ivA) unless this Agreement has been terminated the acceptance for payment of any Shares pursuant to the Offer shall not have occurred, (B) the Board, after consultation with outside legal counsel, determines 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoinggood faith that such action would, in the event that after the date of this Agreement and prior to the receipt absence of the Requisite Sterling Voteforegoing proscriptions, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 required by its fiduciary duties under the DGCL or its duties or obligations under other applicable law; providedLaw, that, and (C) prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentencetaking such action, the Company receives from such party shall have entered into a Person an executed confidentiality agreement with the person making such Acquisition Proposal on in reasonably customary form and in any event containing terms no less favorable to it than at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after determining to take any action described in clause (iii) of the preceding sentence, which confidentiality agreement the Company shall not provide notify Parent of any such person with Superior Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Person making it), and shall thereafter inform Parent on a prompt basis of any exclusive right material changes to negotiate the terms and conditions of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such third party. Each party willThe Company shall, and will shall cause its Subsidiaries and Representatives the officers, directors, employees and other agents and advisors of the Company and its Subsidiaries to, immediately cease and cause to be terminated any activitiesall discussions and negotiations, discussions or negotiations conducted before if any, that have taken place prior to the date of this Agreement hereof with any person other than the other party parties with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise Nothing contained in this Agreement shall prevent the other party following receipt Board of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity Directors of the person making such inquiry or Acquisition Proposal), will provide Company from complying with Rule 14e-2 under the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, Exchange Act with respect to Webster or Sterlingany Acquisition Proposal; provided, as applicablehowever, other than that in connection therewith the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication Company and the Board of interest in, (i) any acquisition or purchase, direct or indirect, Directors shall be subject to the provisions of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySection 7.4(b).
Appears in 2 contracts
Sources: Merger Agreement (Cable & Wireless PLC), Merger Agreement (Digital Island Inc)
Acquisition Proposals. (a) Each party The Company agrees that it will not, and will cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, consultants, advisors and other 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, (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, to any person relating to (other than Parent, Parent Bank and their Representatives in their capacity as such) concerning any Acquisition Proposal or (iv) unless this Agreement has been terminated have or participate in accordance any discussions 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) person (other than a confidentiality agreement referred to Parent, Parent Bank and entered into their Representatives in accordance with this Section 6.13their capacity as such) in connection with or relating to any Acquisition Proposal. Notwithstanding , except, for purposes of this clause (iv), solely to notify such person of the foregoingexistence of the provisions of this Section 6.13(a); provided that prior to the date of the Company Meeting, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling VoteCompany receives from any person (other than Parent, Parent Bank or their respective Representatives in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives their capacity as such) an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to, and participate in such negotiations or in, discussions with the such person making the with respect to such Acquisition Proposal if but only to the extent that, prior to doing so, its 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 advisorsadvisor) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) failure to take such actions would reasonably be more likely than not expected to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, prior to furnishing providing any confidential or nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have (x) provided such information or data to Parent and (y) entered into a confidentiality agreement with the such person making such Acquisition Proposal on terms no less favorable stringent to it such person (and protective to the Company) than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company, its Subsidiaries or its or their respective Representatives. Each party Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.13 by any Subsidiary or Representative of the Company shall constitute a breach of this Section 6.13 by the Company.
(b) The Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date execution of this Agreement with any person (other than the other party Parent, Parent Bank and their Representatives in their capacity as such) with respect to any Acquisition Proposal. Each party Proposal and will promptly use its reasonable best efforts, subject to Law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within five (5) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent, Parent Bank and their Representatives in their capacity as such) pursuant to any such agreement.
(c) Promptly (and in any event within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which that could reasonably be expected to lead to an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy copies of any such written Acquisition Proposal and written summaries of any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or material oral communications relating to an Acquisition Proposal), and will keep the other party Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. .
(d) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.herein,
Appears in 2 contracts
Sources: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Partners Bancorp)
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person (or Representative of such 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 (or Representative of such person) relating to, any Acquisition Proposal, (iv) approve or execute or enter into any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other contract related to any Acquisition Proposal or (ivv) unless this Agreement has been terminated in accordance with its terms, approve propose or enter into agree to do 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, that, prior to the applicable vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a either party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if extent that the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counselcounsel and, and with respect to financial matters, its financial advisorsadvisor) 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party United or Rockville, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. .
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Rockville Financial, Inc. /CT/), Merger Agreement (United Financial Bancorp, Inc.)
Acquisition Proposals. (a) Each party agrees that it will Parent shall not, and will shall cause each of its Subsidiaries not to, and shall cause 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 inquiries or proposals with respect to any Acquisition Proposal, (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, with any person relating to any Acquisition Proposal (except to notify a person that has made, or to the knowledge of such party, is making inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11) 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 6.136.11) 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 Sterling Parent Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Parent receives an unsolicited bona fide written Acquisition Proposal, such party Parent may, and may permit its Subsidiaries and its 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 Parent concludes in good faith (after receiving the advice of its outside counsel, 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, provided that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Parent shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyParent. Each party Parent will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Company with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity In furtherance of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterlingforegoing, as applicable, other than soon as practicable following the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.execution and
Appears in 2 contracts
Sources: Merger Agreement (HomeStreet, Inc.), Merger Agreement (HomeStreet, Inc.)
Acquisition Proposals. (a) Each party agrees that it will From the date hereof until the termination of this Agreement, Stone and its Subsidiaries shall not, and will shall cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) employees or other agents not to, directly or indirectly, (i) initiate, take any action to solicit, knowingly initiate or encourage any Stone Acquisition Proposal or knowingly facilitate inquiries (ii) engage in discussions or negotiations with, or disclose any nonpublic information relating to Stone or its Subsidiaries, respectively, or afford access to their respective properties, books or records to any Person that may be considering making, or has made, a Stone Acquisition Proposal. Nothing contained in this Section 7.2(a) shall prohibit Stone and its Board of Directors and officers from (i) taking such actions necessary to comply with Rules 14d-9 and 14e-2(a) promulgated by the SEC under the Exchange Act, or (ii) furnishing information, including nonpublic information, to or entering into negotiations with, any Person that has indicated its willingness to make an unsolicited bona fide Stone Acquisition Proposal if, and only to the extent that (with respect to clause (ii) of this Section 7.2(a) only):
(A) such interest in making an unsolicited bona fide Stone Acquisition Proposal is made by a third party that Stone’s Board of Directors determines in good faith has the good faith intent to proceed with negotiations to consider, and the financial capability to consummate, such Stone Acquisition Proposal,
(B) Stone’s Board of Directors, after duly consulting with Stone’s outside legal counsel, determines in good faith that such action is necessary for Stone’s Board of Directors to comply with its fiduciary duties imposed by applicable law,
(C) contemporaneously with furnishing such information to, or entering into discussions with, such Person, Stone enters into a customary confidentiality agreement with such Person,
(D) contemporaneously with furnishing such information to, or entering into discussions or negotiations with, such Person, Stone provides written notice to Wave to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, and
(E) Stone uses all reasonable efforts to keep Wave informed in all material respects of the status and terms of any such negotiations or discussions (including the identity of the Person with whom such negotiations or discussions are being held) and provides Wave copies of such written proposals and any amendments or revisions thereto or correspondence related thereto; provided, that Wave agrees to execute a confidentiality agreement, in form reasonably acceptable to it, with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic such information or data to, or have or participate in any discussions with, any person relating delivered 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Wave 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 it than the Confidentiality Agreementclause (E), which confidentiality agreement shall not provide such person with any exclusive right be subject to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions Wave’s disclosure obligations arising under applicable law or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyregulations.
Appears in 2 contracts
Sources: Merger Agreement (Healthtronics Surgical Services Inc), Merger Agreement (Prime Medical Services Inc /Tx/)
Acquisition Proposals. (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, (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, 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 6.136.12) 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 Sterling IBTX Vote, in the case or IBTX, or the Requisite TCBI Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterTCBI, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party TCBI or IBTX, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster IBTX or SterlingTCBI, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Group, Inc.), Merger Agreement (Independent Bank Group, Inc.)
Acquisition Proposals. (a) Each party AMNB 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”) Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, with any person relating to any Acquisition Proposal Proposal, (iv) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract), or (ivv) 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 6.136.11) 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 Sterling AMNB Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party AMNB receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11(a), such party AMNB may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (but only if AMNB shall have provided such information to Buyer concurrently or prior to furnishing it to any such person) and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party AMNB concludes in good faith (after receiving the advice of consulting with its outside counsel, and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or could reasonably be expected to lead to, a Superior Proposal and that the failure to take such actions would be more reasonably likely than not to result in be a violation of its fiduciary duties under applicable law; provided, that, that prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party AMNB shall have (A) provided such information to Buyer and entered into a confidentiality agreement with the person making such Acquisition Proposal 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 AMNB or otherwise prevent AMNB from providing any information to Buyer in accordance with this Agreement or otherwise comply with its obligations under this Agreement, and (B) provided Buyer with at least one (1) business day prior notice of taking any such partyaction. Each party AMNB will, and will cause its Subsidiaries and Representatives to, (x) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties hereto, as applicable, with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal. Each party , and (y) request the prompt return or destruction of all confidential information previously furnished to any person (other than the parties hereto and its Representatives) that has made or indicated an intention to make an Acquisition Proposal.
(b) AMNB will promptly (within twenty-four (24) hours) advise the other party Buyer following receipt of (i) any Acquisition Proposal or (ii) any request for nonpublic information or any other inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Buyer with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making in connection with any such inquiry or Acquisition Proposal in connection with (or a written summary of the material terms of such inquiry or Acquisition Proposal, request or inquiry, if oral), and will keep the other party Buyer apprised (and in any event within twenty-four (24) hours) of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. .
(c) As used in this Agreement, (i) “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party AMNB and its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of AMNB, or twenty-five percent (25%) or more of any class of equity or voting securities of a party AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyAMNB, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyAMNB, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of AMNB and (ii) “Superior Proposal” shall mean any unsolicited bona fide written Acquisition Proposal with respect to which the partyBoard of Directors of AMNB determines in its good faith judgment (after consulting with its outside legal counsel and its financial advisor) is reasonably likely to be consummated in accordance with the terms proposed, and if consummated, would result in a transaction more favorable, from a financial point of view, to AMNB’s shareholders than the Merger and the other transactions contemplated by this Agreement (as it may be proposed to be amended by Buyer), taking into account all legal, financial, regulatory and other relevant factors (including (A) the Acquisition Proposal and this Agreement (including any proposed changes to this Agreement that may be proposed by Buyer in response to such Acquisition Proposal), and (B) any conditions to closing and certainty of closing, timing, any applicable break-up fees and expense reimbursement provisions, and ability of such offeree to consummate the Acquisition Proposal); provided, that for purposes of the definition of “Superior Proposal,” the references to “twenty-five percent (25%)” in the definitions of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”.
Appears in 2 contracts
Sources: Merger Agreement (Atlantic Union Bankshares Corp), Merger Agreement (American National Bankshares Inc.)
Acquisition Proposals. (a) Each party The Company 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, (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, to any person relating to (other than Parent, Parent Bank and their Representatives in their capacity as such) concerning any Acquisition Proposal or (iv) unless this Agreement has been terminated have or participate in accordance any discussions 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) person (other than a confidentiality agreement referred to Parent, Parent Bank and entered into their Representatives in accordance with this Section 6.13their capacity as such) in connection with or relating to any Acquisition Proposal. Notwithstanding , except, for purposes of this clause (iv) to notify such person of the foregoingexistence of the provisions of this Section 6.13(a); provided that prior to the date of the Company Meeting, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling VoteCompany receives from any person other than Parent, in the case of Sterling, Parent Bank or the Requisite Webster Vote, in the case of Webster, a party receives their respective Representatives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to, and participate in such negotiations or in, discussions with the such person making the with respect to such Acquisition Proposal if but only to the extent that, prior to doing so, its 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 advisorsadvisor) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, prior to furnishing providing any confidential or nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to this sentencethe foregoing proviso, the Company shall have provided such party information or data to Parent and shall have entered into a confidentiality agreement with the such person making such Acquisition Proposal on terms no less favorable stringent to it such person than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company or its Representatives. Each party Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.13 by any Subsidiary or Representative of the Company shall constitute a breach of this Section 6.13 by the Company.
(b) The Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date execution of this Agreement with any person (other than the other party Parent, Parent Bank and their Representatives in their capacity as such) with respect to any Acquisition Proposal. Each party Proposal and will promptly use its reasonable best efforts, subject to Law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent, Parent Bank and their Representatives in their capacity as such) pursuant to any such agreement.
(c) Promptly (and in any event within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which that could reasonably be expected to lead to an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy copies of any such written Acquisition Proposal and written summaries of any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or material oral communications relating to an Acquisition Proposal), and will keep the other party Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. .
(d) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.herein,
Appears in 2 contracts
Sources: Merger Agreement (Two River Bancorp), Merger Agreement (Oceanfirst Financial Corp)
Acquisition Proposals. (a) Each party VBI agrees that it will not, and will cause each of its Subsidiaries and its and their respective directors, officers, directors, employees, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party VBI receives an unsolicited bona fide written Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the VBI Shareholder Approval, and VBI’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, such party VBI may, and may permit its Subsidiaries officers and its 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 to the person making the Acquisition Proposal if extent that the Board of Directors of such party VBI concludes in good faith (after receiving and based on the written advice of its outside legal 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 breach of its fiduciary duties obligations to the VBI shareholders under applicable lawLaw; providedprovided further, that, that prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party VBI shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and VBI will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than the other party Seacoast with respect to any Acquisition Proposal. Each party will VBI shall promptly (and in any event within twenty-four (24) hourstwo Business Days) advise Seacoast following the other party following receipt or notice of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Seacoast apprised of any related developments, discussions and negotiations on a current basis. VBI agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by VBI.
(b) Notwithstanding the foregoing, if VBI’s Board of Directors concludes in good faith (and based upon the written advice of its outside counsel and after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes or would reasonably be expected to constitute a Superior Proposal and that failure to accept such Superior Proposal would result in a breach of its fiduciary obligations under applicable Laws, VBI’s Board of Directors may at any time prior to the VBI Shareholder Approval (i) withdraw or modify (a “Change in Recommendation”) the VBI Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the VBI Directors’ Recommendation, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Board of Directors of VBI may not make a Change in Recommendation, and terminate this Agreement, with respect to an Acquisition Proposal unless (i) VBI shall not have breached this Section 4.12 in any respect and (ii) (A) the Board of Directors of VBI determines in good faith (after consultation with outside legal counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues or is reasonably expected to continue to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) VBI has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Person making such Superior Proposal)) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, VBI has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any amendments material change to or revisions of the terms of such inquiry or Acquisition Superior Proposal. Each party , VBI shall, in each case, be required to deliver to SBC a new written notice, the notice period shall use have recommenced and VBI shall be required to comply with its reasonable best efforts 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. As used in obligations under this Agreement, “Acquisition Proposal” means, Section 4.12 with respect to Webster or Sterling, as applicable, other than such new written notice. VBI will advise SBC in writing within twenty-four (24) hours following the transactions contemplated by this Agreement, receipt of any offer, proposal or inquiry relating to, or any third party indication of interest in, Acquisition Proposal and the substance thereof (i) any acquisition or purchase, direct or indirect, of 25% or more including the identity of the consolidated assets of a party Person making such Acquisition Proposal) and its Subsidiaries or 25% or more will keep SBC apprised of any class of equity or voting securities of a party or its Subsidiaries whose assetsrelated developments, individually or in discussions and negotiations (including the aggregate, constitute 25% or more terms and conditions of the consolidated assets of the party, (iiAcquisition Proposal) any tender offer (including on a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partycurrent basis.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Each party Premcor agrees that neither it will not, and will cause each nor any of its Subsidiaries nor any of its and its and their respective officers, Subsidiaries’ directors, officers and Affiliates shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ employees, agents, advisors agents and representatives (collectivelyincluding any investment banker, attorney or accountant retained by it or any of its Subsidiaries, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided that, in the event that after that, following the date of this Agreement and prior to the receipt of the Requisite Sterling VoteAgreement, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Premcor receives an unsolicited bona fide written Acquisition ProposalProposal not in breach of this Section 6.4, such party Premcor may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if extent that the Board of Directors of such party Premcor 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, provided further that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party Premcor shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement . Premcor shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than the other party Valero, with respect to any Acquisition Proposal. Each party Premcor will promptly (within twenty-four (24) hoursone day) advise the other party Valero in writing following receipt of any Acquisition Proposal or any inquiry which that could reasonably be expected to lead to an Acquisition Proposal, and shall keep Valero fully informed of the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposalmaterial terms thereof), and will keep the other party Valero apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Premcor shall use its reasonable best efforts 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. As used Premcor agrees to promptly inform its Subsidiaries, Affiliates, directors, officers, employees, agents and Representatives of the obligations undertaken in this Section 6.4. Nothing in this Section 6.4 shall (A) permit Premcor to terminate this Agreement or (B) affect or limit any other obligation of Valero or Premcor under this Agreement, “Acquisition Proposal” means, .
(b) Nothing contained in this Agreement shall prevent Premcor or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to Webster an Acquisition Proposal; provided, that such Rules will in no way eliminate or Sterling, as applicable, other than modify the transactions contemplated by effect that any action pursuant to such Rules would otherwise have under this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Premcor Inc), Merger Agreement (Valero Energy Corp/Tx)
Acquisition Proposals. (a) Each party agrees that it will Boston Private shall not, and will shall cause each of its Subsidiaries and its and their respective officersofficers and directors not to, directors, employees, and shall use its reasonable best efforts to cause its and their agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to to, any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termspublicly propose any of the foregoing or propose any of the foregoing to a third party; provided, approve or enter into any term sheetthat, letter prior to receipt 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoingRequisite Boston Private Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Boston Private receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives officers, directors, agents, advisors and representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Boston Private shall have provided such party information to SVB Financial, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyBoston Private. Each party Boston Private will, will cause its officers and directors to, and will use reasonable best efforts to cause its Subsidiaries agents, advisors and Representatives representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party SVB Financial with respect to any Acquisition Proposal. Each party Boston Private will promptly (and in any event within twenty-four (24) hourshours and before entering into any discussions or providing any information) advise the other party SVB Financial following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party SVB Financial with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within twenty-four (24) hours) advise SVB Financial of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. Each party Boston Private shall use its reasonable best efforts 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. Boston Private shall not, and shall cause its Subsidiaries and its and their officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.9(a)) relating to any Acquisition Proposal. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party Boston Private and its Subsidiaries or 25% or more of any class of equity or voting securities of a party Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyBoston Private, (ii) any tender offer (including a self-self tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyBoston Private, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution exchange or other similar transaction business combination involving a party Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of Boston Private. As used in this Agreement, “Superior Proposal” means a bona fide written Acquisition Proposal that the partyBoard of Directors of Boston Private concludes in good faith to be more favorable to its shareholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisors, (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of “Superior Proposal,” the reference to “25%” in the definition of Acquisition Proposal shall instead refer to “50%”.
Appears in 2 contracts
Sources: Merger Agreement (Boston Private Financial Holdings Inc), Merger Agreement (Boston Private Financial Holdings Inc)
Acquisition Proposals. (a) Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the parties hereto with respect to any Acquisition Proposal. Each party agrees that it will not, and will cause each of its Subsidiaries not to, and will use its reasonable best efforts to cause its and their respective officers, directorsdirectors (including, with regard to the directors of each party, each fund affiliated with such director), 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, (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 (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.14(a)), 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 similar agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.14) 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 Sterling FirstSun Vote, in the case of SterlingFirstSun, or the Requisite Webster First Foundation Vote, in the case of WebsterFirst Foundation, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.14(a) by such party, such party may, and may permit its Subsidiaries and its 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 counselcounsel and, and with respect to financial matters, its financial advisorsadvisor(s)) 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 provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it such party than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) 24 hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, Proposal and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster or Sterling, as applicablea party, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a such party and its Subsidiaries or 25% or more of any class of equity or voting securities of a such party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the such party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a such party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the such party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a such party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of such party. As used in this Agreement, “Superior Proposal” shall mean, with respect to a party, any bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.14(a) by such party and which the Board of Directors of such party determines, in good faith, after taking into account all legal, financial, regulatory, and other aspects of such proposal (including the amount, form, and timing of payment of consideration, the financing thereof, any associated break-up or termination fees, including those provided for in this Agreement, expense reimbursement provisions, certainty of consummation and all conditions to consummation) and the person making the proposal, and after consulting with its financial advisor (which shall be a nationally recognized investment banking firm) and outside legal counsel, is (i) more favorable from a financial point of view to such party’s stockholders than the transactions contemplated by this Agreement (taking into account any proposal by the other party to amend the terms of this Agreement pursuant to Section 6.4(b)) and (ii) if accepted, reasonably likely to be timely consummated on the terms set forth; provided, however, that for purposes of this definition of Superior Proposal, references to “25%” in the definition of Acquisition Proposal shall be deemed to be references to “50%.” It is agreed that any violation of the restrictions on a party set forth in this Section 6.14(a) by any officer, director, employee, consultant, advisor or other Representative (including, with regard to the directors of each party, each fund affiliated with such director) of such party or any of its Subsidiaries, in each case acting on behalf of such party or any of its Subsidiaries, shall be a breach of this Section 6.14(a) by such party.
Appears in 2 contracts
Sources: Merger Agreement (First Foundation Inc.), Merger Agreement (Firstsun Capital Bancorp)
Acquisition Proposals. (a) Each party agrees that it will The Company shall not, and will shall 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding ; provided, that, prior to receipt of the foregoingRequisite Company Vote, in the event that the Company receives an unsolicited bona fide written Acquisition Proposal after the date of this Agreement and prior its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to the receipt of the Requisite Sterling Votefinancial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Superior Proposal, such party the Company may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms terms, in all material respects, no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party The Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party The Company will promptly (and in any event within twenty-four (24) hours) advise the other party Parent in writing following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, the latest material terms and conditions of such Acquisition Proposal, or any amendment or modification thereof), and will keep the other party apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party The Company shall use its reasonable best efforts efforts, subject to applicable law and the fiduciary duties of the Board of Directors of the Company, to enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal in accordance with its terms. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the terms thereofdate hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with its terms, the Company shall not, and shall cause its Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Acquisition Proposal.
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest inrelating to, (i) any acquisition or purchase, direct or indirect, of 2520% or more of the consolidated assets of a party the Company and its Subsidiaries or 2520% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 2520% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution exchange or other business combination or similar transaction involving a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization. As used in this Agreement, “Superior Proposal” means a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith to be more favorable to its stockholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisors (who shall be a nationally recognized investment banking firm), (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of “Superior Proposal,” the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “a majority.”
Appears in 2 contracts
Sources: Merger Agreement (Keycorp /New/), Merger Agreement (First Niagara Financial Group Inc)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement February 15, 2021 and prior to the receipt of the Requisite Sterling Viking Vote, in the case of SterlingViking, or the Requisite Webster Camber Vote, in the case of WebsterCamber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement February 15, 2021 with any person other than the other party Viking or Camber, as applicable, with respect to any Acquisition Proposal, and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement. February 2021 - Agreement and Plan of Merger
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Viking or SterlingCamber, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Camber Energy, Inc.), Agreement and Plan of Merger (Viking Energy Group, Inc.)
Acquisition Proposals. (a) Each party Ahmanson agrees that it will shall not, and will shall cause each of its Subsidiaries and its and their respective its Subsidiaries' officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly solicit or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) or engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to to, any Acquisition Proposal or (iv) unless waive any provision of or amend the terms of the Ahmanson Rights Agreement in respect of an Acquisition Proposal; provided, however, that, at any time prior to the time its stockholders shall have voted to approve this Agreement has been terminated in accordance Agreement, Ahmanson may, and may authorize and permit its officers, directors, employees, representatives or agents to, provide third parties with its termsnonpublic information, approve otherwise facilitate any effort or enter into attempt by any term sheetthird party to make or implement an Acquisition Proposal, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement recommend 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 6.13) in connection endorse any Acquisition Proposal with or by any third party, and participate in discussions and negotiations with any third party 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Ahmanson Board of Directors of such party concludes determines in good faith (after receiving upon the written advice of its outside counsel, and with respect counsel that such action is legally necessary for it to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result act in a violation of manner consistent with its fiduciary duties under applicable law; provided, that, and prior to furnishing providing any confidential information or data to any person or entering into discussions or negotiations with any Person, the Ahmanson Board notifies Washington Mutual immediately of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Ahmanson or any Subsidiary thereof. Ahmanson shall not furnish any nonpublic information permitted to be provided any other party pursuant to this sentence, such party shall have entered into Section 6.06 except pursuant to the terms of a confidentiality agreement with containing terms substantially identical to the person making such Acquisition Proposal on terms no less favorable to it than contained in the Confidentiality Agreement, which confidentiality agreement Letter. Ahmanson shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before prior to the date of this Agreement with any person parties other than the other party Washington Mutual with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal foregoing and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements similar agreement relating to which it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “an Acquisition Proposal” means. Ahmanson shall promptly (within 24 hours) advise Washington Mutual following the receipt by Ahmanson of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal), and advise Washington Mutual of any developments with respect to Webster or Sterling, as applicable, other than such Acquisition Proposal promptly upon the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyoccurrence thereof.
Appears in 2 contracts
Sources: Merger Agreement (Ahmanson H F & Co /De/), Merger Agreement (Washington Mutual Inc)
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.136.14) 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 Sterling Brookline Vote, in the case of SterlingBrookline, or the Requisite Webster Berkshire Vote, in the case of WebsterBerkshire, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 outside financial advisors) that failure to take such actions would reasonably 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 in the aggregate to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster Berkshire or SterlingBrookline, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 2520% or more of the consolidated assets of a party and its Subsidiaries or 2520% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 2520% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Brookline Bancorp Inc), Merger Agreement (Berkshire Hills Bancorp Inc)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) 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 Sterling Viking Vote, in the case of SterlingViking, or the Requisite Webster Camber Vote, in the case of WebsterCamber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Viking or Camber, as applicable, with respect to any Acquisition Proposal. , and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Viking or SterlingCamber, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Camber Energy, Inc.), Merger Agreement (Camber Energy, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after February 15, 2021 the date of this Agreement hereof and prior to the receipt of the Requisite Sterling Viking Vote, in the case of SterlingViking, or the Requisite Webster Camber Vote, in the case of WebsterCamber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before February 15, 2021 the date of this Agreement hereof with any person other than the other party Viking or Camber, as applicable, with respect to any Acquisition Proposal, and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement. February 2021 - April 2023 – First Amendment to
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Viking or SterlingCamber, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party Viking and its Subsidiaries or Camber and its Subsidiaries, respectively, or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or Viking and its Subsidiaries or Camber and its Subsidiaries, respectively, whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyparty Viking or Camber, respectively, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or Viking and its Subsidiaries or Camber and its Subsidiaries, respectively, whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyparty Viking or Camber, respectively, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or Viking and its Subsidiaries or Camber and its Subsidiaries, respectively, whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyparty Viking or Camber, respectively, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viking Energy Group, Inc.), Agreement and Plan of Merger (Camber Energy, Inc.)
Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, the Company agrees that it will shall not, and will shall cause each of its Subsidiaries the other Company Entities not to, and shall not authorize and shall use reasonable best efforts to cause its and their respective officers, officers and directors, employeesmanagers or equivalent, agents, advisors and representatives (collectively, “Representatives”) other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate inquiries any inquiry, discussion, offer or proposals with respect request that constitutes, or could reasonably be expected to any lead to, an Acquisition ProposalProposal (an “Inquiry”), (ii) engage or participate in any discussions or negotiations with regarding, or furnish to any person concerning Third Party any non-public information in connection with, or knowingly facilitate in any way any effort by, any Third Party in furtherance of any Acquisition ProposalProposal or Inquiry, (iii) provide any confidential approve or nonpublic information or data torecommend an Acquisition Proposal, 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, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any Acquisition Proposal. Notwithstanding of the foregoing.
(b) Notwithstanding anything to the contrary in this Section 6.5, at any time prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in the event that response to an unsolicited bona fide written Acquisition Proposal by a Third Party made after the date of this Agreement (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the receipt of Company receives from the Requisite Sterling VoteThird Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company Entities that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Acquisition Proposal if, in the case of Sterlingeach of clauses (i) and (ii), the Company Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or the Requisite Webster Vote, in the case of Websteris reasonably likely to result in, a party receives an unsolicited bona fide written Superior Proposal.
(c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company Entities by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Acquisition Proposal, such party mayrequest or Inquiry and the material terms and conditions of any Acquisition Proposals, Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt of , notify Parent orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any inquiry which could Person in accordance with this Section 6.5(c) and keep Parent reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity informed of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy status and material terms of any such Acquisition Proposal and any draft agreementsproposals, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developmentsoffers, discussions and or negotiations on a current basis, including by providing a copy of all material documentation or material correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor any amendments committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Company Recommendation in the Joint Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Acquisition Proposal within ten (10) Business Days of the request of Parent and/or fail to reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (provided that Parent shall not be permitted to make such request on more than one (1) occasion in respect of each Acquisition Proposal and each material modification to an Acquisition Proposal, if any) (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit any Company Entity to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (A) (x) has received an unsolicited bona fide Acquisition Proposal (that did not result from a breach of this Section 6.5) that, in the good faith determination of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the Parent Parties pursuant to Section 6.5(e), and such Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, and in such case the Company may (i) terminate this Agreement pursuant to Section 8.1(c)(ii) or (ii) make an Adverse Recommendation Change, including approving or recommending such Superior Proposal to the Company’s stockholders, and, in the case of a termination, the Company may immediately prior to or revisions concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; or (B) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law (based on circumstances not covered by clause (A)), and, in such case the Company may make an Adverse Recommendation Change, provided, that, in the case of each of clause (A) and clause (B), in the event of any termination by the Company or Parent pursuant to Section 8.1(c)(ii) or Section 8.1(d)(ii), as may be applicable, the Company complies with its obligation to pay the Termination Payment pursuant to Section 8.3(a).
(e) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.5(d) unless (i) the Company has provided a written notice (a “Notice of Adverse Recommendation Change”) to the Parent Parties that the Company intends to take such action, specifying in reasonable detail the reasons therefor and, in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party), (ii) during the three (3) Business Day period following the Parent Parties’ receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall cause its Representatives to, negotiate with the Parent Parties in good faith (to the extent the Parent Parties desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such inquiry Adverse Recommendation Change is no longer necessary, and (iii) following the end of the three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by the Parent Parties in response to the Notice of Adverse Recommendation Change or otherwise, (x) that in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), the Superior Proposal giving rise to the Notice of Adverse Recommendation Change, continues to constitute a Superior Proposal, and (y) after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. After compliance with this Section 6.5(e) with respect to any two (2) Superior Proposals, the Company shall have no further obligations under this Section 6.5(e), and the Company Board shall not be required to comply with such obligation with respect to any other Superior Proposal.
(f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Acquisition ProposalProposal or an express reaffirmation of the Company Recommendation shall be deemed to be an Adverse Recommendation Change.
(g) Upon execution of this Agreement, the Company shall, and shall cause each of the other Company Entities, and its and their officers and directors, managers or equivalent, and other Representatives to (i) immediately cease any existing discussions, negotiations or communications with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which any Company Entity is a party or of which any Company Entity is a beneficiary. Each party The Company shall use its reasonable best efforts to enforce cause all Third Parties who have been furnished confidential information regarding any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party Company Entity in accordance connection with the terms thereof. As used in solicitation of or discussions regarding an Acquisition Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that they are entitled to have such information returned or destroyed).
(h) For purposes of this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.:
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Real Estate Investments, Inc.)
Acquisition Proposals. (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, (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 6.13) 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 Sterling PACW Vote, in the case of SterlingPACW, or the Requisite Webster BANC Vote, in the case of WebsterBANC, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its 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, 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 it such party than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster BANC or SterlingPACW, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third third-party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Pacwest Bancorp), Merger Agreement (Banc of California, Inc.)
Acquisition Proposals. (a) Each party agrees that it Except as otherwise provided in this Section 6.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company will not, nor shall it authorize or permit any of its Subsidiaries to, and will use its reasonable best efforts to cause its and their respective Representatives not to, (i) initiate, solicit or knowingly encourage, directly or indirectly, the making of any Acquisition Proposal or (ii) engage in negotiations or substantive discussions with, or furnish any material nonpublic information to, any Third Party relating to an Acquisition Proposal, other than informing Third Parties of the provisions contained in this Section 6.5. The Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not Subsidiaries to, directly or indirectly, (iA) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, Proposal or potential Acquisition Proposal and (iiB) engage request the prompt return or participate in any negotiations destruction of all confidential information previously furnished 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 respect to any Acquisition Proposal or potential Acquisition Proposal.
(ivb) unless Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the date that the Requisite Shareholder Approval is obtained at the Shareholders’ Meeting, in the event that the Company receives a written Acquisition Proposal, the Company and the Company Board and their Representatives may engage in negotiations or substantive discussions (including, as a part thereof, making counterproposals) with, or furnish any information and other access to, any Third Party making such Acquisition Proposal and its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, and based on information then available, that such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal; provided, however, that (x) prior to furnishing any material nonpublic information, the Company receives from such Third Party an executed Acceptable Confidentiality Agreement and (y) any such material nonpublic information so furnished has been terminated previously provided or made available to Parent or is provided or made available to Parent substantially concurrently with it being so furnished to such Third Party.
(c) Except as otherwise provided in accordance with its termsthis Agreement, the Company Board shall not (i) (A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or so modify), the Company Board Recommendation or (B) adopt a formal resolution approving, adopting or recommending any Acquisition Proposal, or propose publicly to approve, adopt or recommend, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) approve or enter into allow the Company or any term sheet, of its Subsidiaries to execute any letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition merger agreement, merger acquisition agreement or other similar definitive agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance an Acceptable Confidentiality Agreement) with this Section 6.13) in connection with or any Third Party relating to any Acquisition ProposalProposal (an “Alternative Acquisition Agreement”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, in the event that after the date of this Agreement and at any time prior to the receipt of the Requisite Sterling VoteShareholder Approval, the Company Board may make a Change in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Recommendation if the Company Board of Directors of such party concludes determines in good faith (after receiving the advice of consultation with its outside counsel, counsel and with respect to financial matters, its financial advisors) that the failure to take such actions action 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead constitute a breach of the directors’ fiduciary duties to an the shareholders of the Company under applicable Law.
(d) Without limiting Section 6.5(c), in response to a written Acquisition Proposal that the Company Board determines in good faith (after consultation with its outside counsel and financial advisors) constitutes a Superior Proposal, the Company may terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) and, concurrently with such termination, may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the substance thereof Company shall not terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) unless the Company (including x) has complied with its obligations set forth in Section 6.5(e), and (y) pays, or causes to be paid, to Parent the Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) and Section 6.5(d), (x) unless the Company shall have provided to Parent five (5) Business Days’ prior written notice (the “6.5(e) Notice”) advising Parent that the Company Board intends to take such action (and (unless a copy of the relevant proposed transaction agreement has been provided to Parent) specifying, in reasonable detail, the material terms and conditions of any such Superior Proposal and the identity of the person Third Party making any such inquiry or Acquisition Superior Proposal)) and, will provide the other party with an unredacted if applicable, a copy of any the relevant proposed transaction agreement, and (y):
(i) during such five (5) Business Day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent to implement changes to the terms of this Agreement intended to cause such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition to no longer constitute a Superior Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, ; and
(ii) the Company Board shall have considered in good faith any tender offer adjustments to this Agreement (including a self-tender offerchange to the price terms hereof) or exchange offer thatand the other agreements contemplated hereby that may be offered in writing by Parent (the “Proposed Changed Terms”) no later than 5:00 p.m., Las Vegas time, on the fifth (5th) Business Day of such five (5) Business Day period and shall have determined (after consultation with its outside counsel and financial advisors) that the Superior Proposal would continue to constitute a Superior Proposal if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyProposed Changed Terms were to be given effect.
Appears in 2 contracts
Sources: Merger Agreement (Bally Technologies, Inc.), Merger Agreement (SHFL Entertainment Inc.)
Acquisition Proposals. (a) Each party agrees that it Amegy will not, and will cause each of its Subsidiaries and its and their respective its Subsidiaries’ officers, directors, employees, agents, advisors advisors, affiliates and representatives (collectively, “Representatives”) any other person acting on their behalf not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) or engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or 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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , or waive any provision of or amend the foregoingterms of the Amegy Rights Agreement, in respect of an Acquisition Proposal; provided that, in the event that Amegy receives an unsolicited bona fide Acquisition Proposal after the date execution of this Agreement and prior to (but not after) the receipt approval of this plan of merger by the Requisite Sterling Voteshareholders of Amegy at the Amegy Meeting, and the Amegy Board concludes in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, good faith that such Acquisition Proposal constitutes a party receives an unsolicited bona fide written Acquisition Superior Proposal, such party Amegy may, and may permit its Subsidiaries and its 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 to the person making extent that the Acquisition Proposal if the Amegy Board of Directors of such party concludes reasonably and in good faith (after receiving and based on 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, provided that prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party it shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality Agreement; provided, which confidentiality agreement that Amegy shall not provide have given Zions (orally and in writing) at least three (3) business days’ prior written notice of its intent to do so before taking the first of any such person actions with any exclusive right one such person; provided, further, that Amegy and the Board of Directors of Amegy shall keep Zions informed of the status and terms of any such proposals, offers, discussions or negotiations on a prompt basis, including by providing a copy of all material documentation or correspondence relating thereto; and provided, further, that in any event Amegy shall be required to negotiate otherwise comply with such partyits obligations under Section 6.02(c). Each party will, and Amegy will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than the other party Zions with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Each party Amegy will promptly (within twenty-four (24) hours) advise the other party Zions following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposalthereof, and will keep the other party Zions apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used .
(b) Nothing contained in this Agreement, “Acquisition Proposal” means, Agreement shall prevent Amegy or the Amegy Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to Webster an Acquisition Proposal, provided that such Rules will in no way eliminate or Sterling, as applicable, other than modify the transactions contemplated by effect that any action pursuant to such Rules would otherwise have under this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Amegy Bancorporation, Inc.), Merger Agreement (Zions Bancorporation /Ut/)
Acquisition Proposals. (a) Each party agrees that it will notLFC shall not directly or indirectly, and will it shall use all commercially reasonable efforts to cause each of its Subsidiaries and its and their respective officers, directors, employees, agentsrepresentatives, advisors and representatives (collectivelyagents or affiliates, “Representatives”) including any investment bankers, attorneys or accountants retained by LFC or any of its Subsidiaries or affiliates, not to, directly or indirectly, (i) solicit, initiate, solicit, knowingly encourage or knowingly otherwise facilitate (including by way of furnishing information) any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data tothat constitute, 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposalto, a proposal or offer for a merger, recapitalization, consolidation, business combination, sale of a substantial portion of the assets of LFC and its Subsidiaries, taken as a whole, sale of 15% or more of the substance thereof shares of capital stock (including the terms and conditions by way of and the identity of the person making such inquiry a tender offer, share exchange or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals exchange offer) or other materials received from similar or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it comparable transactions involving LFC or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableSubsidiaries, other than the transactions contemplated by this Agreement, Agreement (any offer, such proposal or inquiry offer (other than a proposal or offer made by IBC or an affiliate thereof) being herein referred to as an “Acquisition Proposal”), or (ii) engage in negotiations or discussions concerning, or provide any non-public information to any Person relating to, any Acquisition Proposal. Notwithstanding any other provision of this Agreement, the Board of Directors of LFC may, at any time prior to approval of this Agreement by the stockholders of LFC, furnish information pursuant to a confidentiality agreement to, or engage in discussions or negotiations with, any Person in response to an unsolicited bona fide written Acquisition Proposal of such Person if, (a) LFC has not violated any of the restrictions set forth in this Section 6.4, (b) the Board of Directors of LFC or any committee thereof concludes in good faith after consultation with its outside legal counsel, that such action is reasonably necessary in order for the Board of Directors of LFC to comply with its fiduciary obligation to the stockholders of LFC under applicable law and (c) only to the extent that, the Board of Directors of LFC determines in good faith by a majority vote, after consultation with its financial advisors, that such Acquisition Proposal constitutes a Superior Proposal. From and after the execution of this Agreement, LFC shall immediately advise IBC in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations or proposals relating to an Acquisition Proposal (including the specific terms thereof and the identity of the other party or parties involved) and furnish to IBC within 24 hours of such receipt an accurate description of all material terms (including any changes or adjustments to such terms as a result of negotiations or otherwise) of any such written proposal in addition to any information provided to any third party indication relating thereto. Upon execution of interest inthis Agreement, LFC and the LFC Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Notwithstanding any other provision of this Agreement, in response to an unsolicited Acquisition Proposal, LFC’s Board of Directors shall be permitted, at any time prior to the approval of this Agreement by the stockholders of LFC, (i) any acquisition to withdraw, modify or purchasechange, direct or indirectpropose to withdraw, modify or change, the approval or recommendation by the Board of 25% Directors of this Agreement, the Merger or more of the consolidated assets of a party and its Subsidiaries other transactions contemplated by this Agreement or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) to approve or recommend, or propose to approve or recommend, any tender offer Acquisition Proposal, but only if, in each case referred to in clauses (including a self-tender offeri) or exchange offer thatand (ii), the Board of Directors of LFC concludes in good faith that (a) such Acquisition Proposal would, if consummated, constitute a Superior Proposal and such proposal has not been withdrawn and (b) in light of such Superior Proposal, the failure to withdraw, withhold, amend, modify or change such recommendation would result constitute a breach of the fiduciary duties of the Board of Directors of LFC to the stockholders of LFC under applicable law. LFC shall immediately advise IBC in such third party beneficially owning 25% or more writing, if the Board of Directors shall make any class of equity or voting securities of a party determination as to any Acquisition Proposal as contemplated by the preceding sentence. Nothing contained in this Section 6.4 shall prohibit LFC or its Subsidiaries whose assets, individually Board of Directors (i) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act or in from making any legally required disclosure to the aggregate, constitute 25% or more stockholders of the consolidated assets of the party, LFC with regard to an Acquisition Proposal or (iiiii) a mergerprior to the approval of this Agreement by the stockholders of LFC, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyfrom taking any action as contemplated by Section 8.1(f).
Appears in 2 contracts
Sources: Merger Agreement (International Bancshares Corp), Merger Agreement (Local Financial Corp /Nv)
Acquisition Proposals. (a) Each party agrees that it will Company shall not, and will shall 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event that that, after the date of this Agreement hereof and prior to the receipt of the Requisite Sterling Company Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event Company receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Company shall have provided such party information to Parent, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyCompany. Each party Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party Company will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised Parent promptly (and in any event within one (1) business day) advised of any related substantive developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Company shall (1) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving Company and (2) use its reasonable best efforts efforts, subject to applicable law and the fiduciary duties of the Company Board, to enforce any existing confidentiality or (to the extent separate from a confidentiality agreement) standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofthereof and, in accordance therewith, cause any person (other than a party to this Agreement, its affiliates and representatives) to return or destroy non-public information regarding Company or any of its affiliates in connection with a potential transaction involving Company. During the term of this Agreement, Company shall not, and shall cause its Subsidiaries and its and their officers, directors, agents, advisors and representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement, or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13(a)) relating to any Acquisition Proposal. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, offer or proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party Company and its Subsidiaries or 25% or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning more than 25% or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, exchange or other business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction reorganization involving a party Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute more than 25% or more of the consolidated assets of Company, except, in each case, any sale of whole loans and securitizations in the partyordinary course of business and any bona fide internal reorganization.
Appears in 2 contracts
Sources: Merger Agreement (First Horizon National Corp), Merger Agreement (Capital Bank Financial Corp.)
Acquisition Proposals. (a) Each Subject to Section 6.7(b) below, unless and until this Agreement shall have been terminated by either party agrees that it will notpursuant to Article VIII hereof, and will cause each none of its Subsidiaries and its and AHM, New Holdco or the Company shall take or cause, directly or indirectly (through their respective officers, directors, employees, agentsrepresentatives, advisors and representatives agents or affiliates, including any investment bankers, attorneys or accountants (collectively, “the "Representatives”")), any of the following actions with any party other than AHM or New Holdco or their designees (in the case of the Company) or the Company (in the case of AHM and New Holdco): (i) solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any offer or proposal to acquire all or a significant part of its business, assets or capital stock whether by merger, consolidation or other business combination, purchase of assets, tender or exchange offer or otherwise, other than with respect to a sale transaction permitted under Section 5.1 or 5.2 hereof (each of the foregoing, an "Acquisition Proposal"); (ii) disclose, in connection with an Acquisition Proposal, any information or provide access to its properties, books or records, except as required by law or pursuant to a governmental request for information; (iii) enter into or execute any agreement relating to an Acquisition Proposal; or (iv) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal other than with respect to the Merger, or as otherwise required by applicable law. This Section 6.7(a) shall not limit the ability of the Company or AHM to sell assets in accordance with Sections 5.1(f) or 5.2(g) hereof, respectively.
(b) Notwithstanding the foregoing, prior to the Stockholder Approvals, (the "Applicable Period"), in response to a bona fide, unsolicited, written Acquisition Proposal from a Third Party (that does not result from a breach of this Section 6.7), the Board of Directors of the party receiving such Acquisition Proposal may, and may authorize and permit its Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals provide such Third Party with respect to any Acquisition Proposalnonpublic information, (ii) engage otherwise facilitate any effort or participate in any negotiations with any person concerning any attempt by such Third Party to make such Acquisition Proposal, (iii) provide agree to or recommend or endorse any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any such Acquisition Proposal with or by any Third Party, (iv) unless withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party hereto, its approval and recommendation of the Merger and this Agreement has been terminated Agreement, and (v) participate in accordance discussions and negotiations 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 6.13) in connection with or such Third Party 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written such Acquisition Proposal, such party may, if and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause only to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if extent that (x) the Board of Directors of the party receiving such party concludes Acquisition Proposal, or any committee thereof, determines in good faith (after receiving the advice of its outside counsel, and consultation with respect to financial matters, its financial advisorsadvisor and legal counsel) that failure to take such actions would be Acquisition Proposal is more favorable or is likely than not to result in an Acquisition Proposal that is more favorable to its stockholders than the Merger and is made by a violation Person believed by the Board of its fiduciary duties under applicable law; providedDirectors of the party receiving such Acquisition Proposal, thator any committee thereof, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentencereasonably capable of completing such Acquisition Proposal (a "Superior Proposal"), such party shall have and (y) the Third Party has entered into a confidentiality agreement with pertaining to nonpublic information regarding the person making party receiving such Acquisition Proposal on containing terms in the aggregate no less more favorable to it the Third Party than those in the Confidentiality Agreement, which confidentiality . Neither party shall enter into any agreement shall not provide such person with any exclusive right implementing a Superior Proposal prior to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date termination of this Agreement in accordance with any person other than the other Section 8.1 below.
(c) The party with respect to any receiving such Acquisition Proposal. Each party will Proposal shall promptly (within twenty-four (24) hours) advise the other party following receipt orally and in writing of any request for information or any Acquisition Proposal it receives and any material change in the terms thereof (but not the terms or identity of the Person making such request or Acquisition Proposal).
(d) Nothing contained in this Section 6.7 shall prohibit the Company or AHM or their respective Boards of Directors (i) from taking and disclosing to their respective stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from making any inquiry which could reasonably be expected legally required disclosure to lead their respective stockholders with regard to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) prior to the Company Stockholder Approval or the AHM Stockholder Approval, as appropriate, from taking any tender offer (including a self-tender offeraction as contemplated by Section 8.1(d)(iii) or exchange offer that8.1(e)(iii) below. Nothing in this Section 6.7 shall permit the Company or AHM to terminate this Agreement (except as specifically provided in Article VIII hereof).
(e) For purposes of this Section 6.7, if consummated, would result in such third party beneficially owning 25% or more references to the Board of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more Directors of the consolidated assets of Company shall include the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySpecial Committee.
Appears in 2 contracts
Sources: Merger Agreement (Apex Mortgage Capital Inc), Merger Agreement (American Home Mortgage Holdings Inc)
Acquisition Proposals. (a) Each party The Company 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify such person of the foregoingexistence of the provisions of this Section 6.12(a); provided, that, prior to the date of the Company Meeting, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.12(a), such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 (1) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (2) failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information or data, or participating in any negotiations or discussions, in each case, permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partythe Company. Each party The Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than the Company) pursuant to such agreement. Each party The Company will promptly (and in any event within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy copies of any such written Acquisition Proposal and written summaries of any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or material oral communications relating to an Acquisition Proposal), and will keep the other party Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. .
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.,
Appears in 2 contracts
Sources: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Cape Bancorp, Inc.)
Acquisition Proposals. (a) Each party agrees that it will National Penn shall not, and will shall cause each of its Subsidiaries and cause 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event that after the date of this Agreement and that, prior to the receipt of the Requisite Sterling National Penn Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event National Penn receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 advisorsadvisor) 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, National Penn shall have provided such party information to Parent, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyNational Penn. Each party National Penn will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party National Penn will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could would reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within one (1) business day) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party National Penn shall use its reasonable best efforts 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. As used Unless this Agreement has been terminated in this Agreementaccordance with its terms, “Acquisition Proposal” meansNational Penn shall not, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and shall cause its Subsidiaries or 25% or more of and cause its and their officers, directors, agents, advisors and representatives not to on its behalf, enter into any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.letter
Appears in 2 contracts
Sources: Merger Agreement (Bb&t Corp), Merger Agreement (National Penn Bancshares Inc)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement February 3, 2020 and prior to the receipt of the Requisite Sterling Viking Vote, in the case of SterlingViking, or the Requisite Webster Camber Vote, in the case of WebsterCamber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement February 3, 2020 with any person other than the other party Viking or Camber, as applicable, with respect to any Acquisition Proposal. , and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Viking or SterlingCamber, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viking Energy Group, Inc.), Agreement and Plan of Merger (Camber Energy, Inc.)
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, and will cause each nor any of its Subsidiaries and its and nor any of their respective officers, directorsdirectors and employees shall, employees, agents, advisors and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it or acting on its behalf) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors and employees shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it or acting on its behalf) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or (iv) unless Proposal; provided, however, that nothing contained in this Agreement has been terminated in accordance shall prevent the Company or the Company Board from (A) complying 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 Rule 14d-9 and Rule 14d-2 under the Exchange Act with respect to and entered into in accordance with this Section 6.13) in connection with or relating to any an Acquisition Proposal. Notwithstanding ; provided, that such rules will in no way eliminate or modify the foregoingeffect that any action pursuant to such rules would otherwise have under this Agreement; (B) at any time prior, but not after, the Company Stockholder Approval is obtained, providing information in the event that after the date of this Agreement and prior response to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal, Proposal if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive in the aggregate to the other party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish than those contained in the Confidentiality Agreement; or cause to be furnished confidential or nonpublic information or data and participate (C) engaging in such any negotiations or discussions with the person making the any Person who has made an unsolicited bona fide written Acquisition Proposal if and only to the extent that, in each such case referred to in clause (B) or (C) above, the Company Board of Directors of such party concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that the failure to take such actions action would reasonably be more likely than not expected to result in a violation of its violate the directors’ 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 Law. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt individuals referred to in the first sentence hereof of the obligations undertaken in this Section 5.08. The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to an Acquisition Proposalinitiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of any proposal or offer and the identity of the person making such inquiry or Acquisition Proposal)thereafter shall keep Parent informed, will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with offers and the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more status of any class of equity such discussions or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partynegotiations.
Appears in 2 contracts
Sources: Merger Agreement (Square 1 Financial Inc), Merger Agreement (Pacwest Bancorp)
Acquisition Proposals. (a) Each party agrees that it will notNotwithstanding any other provision of this Agreement, from 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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement No-Shop Period Start Date and prior to the receipt of the Company Requisite Sterling Vote, the Company may, at the direction of the Special Committee, directly or indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 7.3(c), (A) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Special Committee reasonably determines in good faith (after consultation with its financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Special Committee reasonably determines in good faith (after consultation with its financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, provided, that in the case of Sterlingany action taken pursuant to the foregoing clauses (A) or (B), (1) none of the Company, its Subsidiaries or any representative of the Company or its Subsidiaries shall have breached or violated the terms of Section 7.3, (2) the Company Board or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Special Committee determines in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, (3) none of the Company or its Subsidiaries shall have entered into, or otherwise become bound by the terms of, an exclusivity agreement or other agreement restricting the ability of the Company and its Subsidiaries to negotiate, enter into and consummate a transaction with a third party other than such Person, (4) at least forty-eight (48) hours prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company provides Dimensional written notice of the identity of such Person and the material terms and conditions of such Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such inquiry or Acquisition ProposalPerson, (5) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Dimensional (but only to the extent such information has not been previously furnished by the Company to Dimensional), will provide and (6) the other party with an unredacted copy Company shall keep Dimensional reasonably informed about the status and details of any such Acquisition Proposal and any draft agreements, proposals amendments or other materials received from or on behalf of the person making revisions thereto. Until any such inquiry or Acquisition Proposal has been withdrawn, the Company shall promptly provide Dimensional a copy of all written materials subsequently provided by the Company to such Person in connection with such inquiry or Acquisition Proposal, request or inquiry, and will keep the other party apprised a description of any related developments, discussions and negotiations on a current basis, including any material amendments or proposed material amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal request or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of but only to the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in extent such information has not been previously furnished by the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyCompany to Dimensional).
Appears in 2 contracts
Sources: Merger Agreement (Dimensional Associates, LLC), Merger Agreement (Orchard Enterprises, Inc.)
Acquisition Proposals. (a) Each party The Company agrees that it will not, and will cause each of its Subsidiaries and use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or (iv) unless is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a); provided that, prior to the approval of this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter by the shareholders 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoingCompany by the Requisite Company Vote, in the event the Company receives an Acquisition Proposal that after was not the date result of a willful or material breach of this Agreement and prior to the receipt of the Requisite Sterling VoteSection 6.11(a), in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 its 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 advisorsadvisor) 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company. Each party The Company will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party The Company shall provide three (3) Business Days written notice to Parent prior to entering into any Acceptable Confidentiality Agreement. The Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof Proposal (including the material terms and conditions of of, and the identity of the person making making, such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Parent reasonably apprised of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. Each party The Company shall use its reasonable best efforts withdraw and terminate access that was granted to enforce any existing confidentiality person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or standstill agreements to which it physical) that was established in connection with an Acquisition Proposal.
(b) The Company shall not, and none of the Board of Directors of the Company or any committee thereof shall cause or permit the Company to, enter into any letter of its Subsidiaries is a party intent, memorandum of understanding, agreement in accordance with principle, acquisition agreement, merger agreement or other agreement (other than an Acceptable Confidentiality Agreement) relating to any Acquisition Proposal made to the terms thereof. Company.
(c) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyCompany.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (CapStar Financial Holdings, Inc.)
Acquisition Proposals. (a) Each party agrees that it will notHopFed will, and will cause each of its Subsidiaries and its and their respective Subsidiaries’, officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than First Financial with respect to any Acquisition Proposal.
(b) HopFed agrees that it will not, and will cause its Subsidiaries and its and their Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify such person of the foregoingexistence of the provisions of this Section 5.6; provided, that, prior to the adoption of this Agreement by the shareholders of HopFed by the Requisite HopFed Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party HopFed receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party HopFed shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality Agreement, Agreement and which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party HopFed.
(c) HopFed will promptly (within twenty-four (24) hoursthree business days) advise the other party First Financial following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including a summary of the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party First Financial apprised of any related developments, discussions and negotiations on a current basisupdated developments within two business days thereafter, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party HopFed, subject to its fiduciary duties, shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 2520% or more of the consolidated assets of a party HopFed and its Subsidiaries or 2520% or more of any class of equity or voting securities of a party HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of the partyHopFed, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 2520% or more of any class of equity or voting securities of a party HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of the partyHopFed, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of HopFed.
(d) Nothing contained in this Agreement shall prevent HopFed or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the partyExchange Act with respect to an Acquisition Proposal or from making any legally required disclosure to its shareholders; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hopfed Bancorp Inc), Merger Agreement (First Financial Corp /In/)
Acquisition Proposals. (a) Each party The Company agrees that it will not, and will cause each of its Subsidiaries and use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or (iv) unless is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.12(a); provided that, prior to the approval of this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter by the shareholders 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoingCompany by the Requisite Company Vote, in the event the Company receives an Acquisition Proposal that after was not the date result of a willful or material breach of this Agreement and prior to the receipt of the Requisite Sterling VoteSection 6.12, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 its 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 advisorsadvisor) 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company. Each party The Company will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party The Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof Proposal (including the material terms and conditions of of, and the identity of the person making making, such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Parent reasonably apprised of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. Each party The Company shall (A) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving the Company and (B) use its reasonable best efforts 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. .
(b) The Company shall not, and none of the Board of Directors of the Company or any committee thereof shall cause or permit the Company to, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than an Acceptable Confidentiality Agreement) relating to any Acquisition Proposal made to the Company.
(c) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 2520% or more of the consolidated assets of a party the Company and its Subsidiaries or 2520% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 2520% or more of any class of equity or voting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 2520% or more of the consolidated assets of the partyCompany.
Appears in 2 contracts
Sources: Merger Agreement (Franklin Financial Network Inc.), Merger Agreement (FB Financial Corp)
Acquisition Proposals. (a) Each party agrees that it will notTFC will, and will cause each of its Subsidiaries to, and its and their respective officers, directors, employees, agents, advisors directors and representatives (collectivelyincluding KBW) to, “Representatives”immediately cease and cause to be terminated any existing solicitations, discussions or negotiations with any Person that has made or indicated an intention to make an Acquisition Proposal (as defined below). During the period from the date of this Agreement through the Effective Time, TFC shall not terminate, amend, modify or waive any material provision of any confidentiality or similar agreement to which TFC or any of its Subsidiaries is a party (other than any involving ONB).
(b) Except as permitted in this Section 5.06, TFC shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including KBW) not to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries or proposals with respect to any an Acquisition Proposal, or (ii) engage or initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any person concerning any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the approval of the Merger by TFC’s shareholders, if TFC receives a bona fide Acquisition Proposal that the TFC Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (iiias defined below) provide any confidential or nonpublic information or data tothat was not solicited after the date hereof and did not otherwise result from a breach of TFC’s obligations under this Section 5.06, TFC may furnish, or have cause to be furnished, non-public information with respect to TFC and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to ONB prior to or at the same time it is provided to such Person) and may participate in discussions and negotiations regarding such proposal if (A) the TFC Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to TFC’s shareholders under applicable law and (B) prior to taking such action, TFC has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any discussions violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including KBW) of TFC or its Subsidiaries shall be a breach of this Section 5.06 by TFC.
(c) Neither the TFC Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw or modify in a manner adverse to ONB or propose to withdraw or modify in a manner adverse to ONB (or take any action inconsistent with) the recommendation by such TFC Board of Directors or any such committee of this Agreement or the Merger, any person relating or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ivii) unless this Agreement has been terminated in accordance with its terms, approve cause or permit TFC or TBT to enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (whether written each, an “Acquisition Agreement”) constituting or oralrelated to, binding or nonbinding) which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal5.06(b)). Notwithstanding the foregoing, in the event that after the date of this Agreement and at any time prior to the receipt special meeting of TFC’s shareholders to approve the Requisite Sterling VoteMerger, the TFC Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change; provided, that the TFC Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties to the shareholders of TFC under applicable Law, and provided, further, that the TFC Board of Directors may not effect such an Adverse Recommendation Change unless (A) the TFC Board shall have first provided prior written notice to ONB (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of Sterlinga Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the Requisite Webster Votetransaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) ONB does not make, within five business days after receipt of such notice, a proposal that would, in the case reasonable good faith judgment of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 TFC Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the TFC Board’s fiduciary duties to the shareholders of such party concludes TFC under applicable law. TFC agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, TFC and its officers, directors and representatives shall negotiate in good faith (after receiving the advice of with ONB and its outside counselofficers, directors, and with respect representatives regarding any revisions to financial mattersthe terms of the transactions contemplated by this Agreement proposed by ONB.
(d) In addition to the obligations of TFC set forth in paragraphs (a), its financial advisors(b) that failure to take such actions would be more likely than not to result in a violation and (c) of its fiduciary duties under applicable law; providedthis Section 5.06, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party TFC shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party willas promptly as possible, and will cause its Subsidiaries in any event within two business days after TFC first obtains knowledge of the receipt thereof, advise ONB orally and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date in writing of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24i) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which request for information that TFC reasonably believes could reasonably be expected to lead to or contemplates an Acquisition Proposal or (ii) any inquiry TFC reasonably believes could lead to any Acquisition Proposal, and the substance thereof (including the terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the person Person making any such inquiry Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal), will provide request or inquiry, if there occurs or is presented to TFC any offer, material change, modification or development to a previously made offer, letter of intent or any other material development, TFC (or its outside counsel) shall (A) advise and confer with ONB (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and the material terms (including material amendments or proposed amendments as to price and other party with an unredacted copy material terms) of any such Acquisition Proposal Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide ONB with true, correct and complete copies of any draft agreementsdocument or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit TFC from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the 1934 Act or from making any other disclosure to its shareholders or in any other regulatory filing if, proposals or other materials received from or on behalf in the good faith judgment of the person making such inquiry TFC Board of Directors, after consultation with its outside counsel, failure to so disclose would be reasonably likely to result in a breach of their or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised TFC’s obligations under applicable law.
(f) For purposes of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean (i) any inquiry, with respect to Webster proposal or Sterling, as applicable, offer from any Person or group of Persons (other than the transactions as contemplated by this Agreement, any offer, proposal or inquiry ) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of 25(A) assets or businesses that constitute 20% or more of the consolidated revenues, net income or assets of a party TFC and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of a party TFC or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, Subsidiaries; (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party any Person beneficially owning 2520% or more of any class of equity or voting securities of a party TFC or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or Subsidiaries; (iii) a any merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or other similar transaction involving a party TFC, TBT or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute 25shareholders of any Person would own 20% or more of any class of equity securities of TFC, TBT, or any of TFC’s other Subsidiaries or of any resulting parent company of TFC or TBT; or (iv) any other transaction the consolidated assets consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to ONB of the partytransactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural Person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 2 contracts
Sources: Merger Agreement (Tower Financial Corp), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Each party agrees that it will notMercer shall not authorize or permit any officer, and will cause each of its Subsidiaries and its and their respective officersdirector or employee of, directorsor any investment banker, employeesattorney, agentsaccountant or other advisor or representative of, advisors and representatives (collectively, “Representatives”) not Mercer or any Mercer Subsidiary to, directly or indirectly, (i) initiate, solicit, knowingly initiate or encourage or knowingly facilitate inquiries or proposals with respect to the submission of any Acquisition Proposal, as defined below, (ii) engage or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or agree to or endorse, or take any person concerning other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) provide any confidential withdraw or nonpublic information or data tomodify, or have propose to withdraw or participate modify, in a manner adverse to Buyer, the Mercer Recommendation, (iv) approve or recommend, or propose to approve or recommend, any discussions Acquisition Proposal, or (v) enter into any letter of intent, agreement in principal or Contract providing for, relating to or in connection 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 proposal that could reasonably be expected to and entered into in accordance with this Section 6.13) in connection with or relating lead to any an Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and prior to the receipt Mercer Shareholder Meeting, nothing contained in this Agreement shall prevent Mercer or its Board of Directors from taking any of the Requisite Sterling Vote, actions described in the case of Sterling, or the Requisite Webster Vote, clauses (ii) through (v) above in the case of Webster, a party receives an response to any unsolicited bona fide written Acquisition Proposal by a Third Party, if, only to the extent that and only so long as, (A) such Acquisition Proposal would, if consummated, result in a Superior Proposal, such party mayas defined below, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives toand, 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 reasonable good faith judgment of ▇▇▇▇▇▇’▇ Board of Directors of such party concludes in good faith (after receiving the advice of Directors, following consultation with its outside counsel, and with respect to financial matters, its independent financial advisors, the Third Party making such Superior Proposal has the financial means to conclude such transaction, (B) that the failure to take such actions action would be more likely than not to result in a violation the reasonable good faith judgment of its ▇▇▇▇▇▇’▇ Board of Directors, after consultation with ▇▇▇▇▇▇’▇ outside corporate counsel, violate the fiduciary duties of ▇▇▇▇▇▇’▇ Board of Directors under applicable law; providedApplicable Law, that, (C) prior to furnishing any confidential such non-public information to, or nonpublic information permitted to be provided pursuant to this sentenceentering into discussions or negotiations with, such party shall have entered into a Third Party, ▇▇▇▇▇▇’▇ Board of Directors receives from such Third Party an executed confidentiality agreement with the person making such Acquisition Proposal on terms no provisions not less favorable to it Mercer than those contained in the Confidentiality Agreement, which confidentiality agreement and (D) Mercer shall not provide such person have provided Buyer all materials and information required under Section 5.4(c) to be delivered by Mercer to Buyer and shall have fully complied with any exclusive right to negotiate with such party. Each party willthis Section 5.4; provided, further, that immediately after the execution and delivery of this Agreement, Mercer will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Third Parties conducted heretofore with respect to any possible Acquisition Proposal. Each party will Mercer agrees that following its receipt of a Superior Proposal and its full compliance with Section 5.4(c), Buyer shall have a reasonable opportunity, but in no event more than five (5) days, to propose changes to this Agreement in response to such proposal.
(b) Mercer shall promptly cease and terminate all activities, discussions and negotiations with any Third Party permitted pursuant to Section 5.4(a) and promptly reaffirm the Mercer Recommendation if at any time any of the conditions set forth in clauses (within A) and (B) of Section 5.4(a) shall fail to be satisfied, including if, as a result of any changes to the terms of this Agreement proposed by Buyer, such Acquisition Proposal would thereafter fail to result in a Superior Proposal.
(c) Notwithstanding anything in this Agreement to the contrary, Mercer shall promptly, and in no event later than twenty-four (24) hours) advise the other party following receipt of hours after it receives any Acquisition Proposal, or any written request for information regarding Mercer or any Mercer Subsidiary by a Third Party that has made or is considering making an Acquisition Proposal or any inquiry or proposal which could reasonably be expected to lead to, an Acquisition Proposal or any indication that a Third Party is considering making an Acquisition Proposal or any proposal that could reasonably be expected to lead to an Acquisition Proposal, advise Buyer orally and in writing of the substance thereof (receipt of such Acquisition Proposal, request, inquiry or indication, including the terms and conditions of and providing the identity of the person Third Party making or submitting such inquiry Acquisition Proposal or Acquisition Proposal)request, will provide the other party with an unredacted and (i) if it is in writing, a copy of any such Acquisition Proposal and any related draft agreements, proposals or agreements and other materials received from or on behalf written material setting forth the material terms and conditions of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and (ii) if oral, a reasonably detailed written summary thereof. Mercer will keep Buyer fully informed of the other party apprised status and details of any related developmentssuch Acquisition Proposal, discussions and negotiations on a current basisrequest, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality indication or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than any change to the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more material terms of any class of equity such Acquisition Proposal, request, inquiry or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer indication. Mercer agrees that, if consummatedsubject to restrictions under Applicable Laws, would result it shall, prior to or concurrent with the time it is provided to any Third Parties, provide to Buyer any non-public information concerning Mercer and any Mercer Subsidiary that Mercer provides to any Third Party in such third party beneficially owning 25% or more of connection with any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyAcquisition Proposal which was not previously provided to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (United Fire & Casualty Co), Merger Agreement (Mercer Insurance Group Inc)
Acquisition Proposals. (a) Each party agrees that it will Company shall not, and will shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding ; provided, that, prior to receipt of the foregoingRequisite Company Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not result in a Superior Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing or substantially concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Company shall have provided notice to Parent of its intention to provide such party information, and shall have provided such information to Parent if not previously provided to Parent, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyCompany. Each party Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party Company will promptly (and in any event within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to result in an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Company shall use its reasonable best efforts efforts, subject to applicable law, to (x) enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with the terms thereof. its terms, Company shall not, and shall cause its Subsidiaries and its and their officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.10(a)) relating to any Acquisition Proposal).
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal proposal, inquiry or inquiry relating to, or any third party indication of interest ininterest, made by a person (or a group of persons acting in concert within the meaning of Rule 13d-5 of the Exchange Act) relating to (i) any acquisition or purchase, direct or indirect, of 25% twenty percent (20%) or more of the consolidated assets of a party Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more than twenty percent (20%) of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% twenty percent (20%) or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more than twenty percent (20%) of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.or
Appears in 2 contracts
Sources: Merger Agreement (Canadian Imperial Bank of Commerce /Can/), Merger Agreement (Privatebancorp, Inc)
Acquisition Proposals. (a) Each party NewBridge 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify such person of the foregoingexistence of the provisions of this Section 6.12(a); provided, that, prior to obtaining the Requisite NewBridge Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party NewBridge receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party NewBridge shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyNewBridge. Each party NewBridge will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Yadkin with respect to any Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Yadkin) pursuant to such agreement. Each party NewBridge will promptly (within twenty-four (24) hours) advise the other party Yadkin following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal and copies of any written Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Yadkin apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party NewBridge and its Subsidiaries or 25% or more of any class of equity or voting securities of a party NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyNewBridge, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyNewBridge, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% or more of the consolidated assets of the partyNewBridge.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Newbridge Bancorp), Merger Agreement (YADKIN FINANCIAL Corp)
Acquisition Proposals. (a) Each party agrees that it will notNo Beneficial Entity shall, and will it shall cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (i) solicit, initiate, solicitencourage (including by providing information or assistance), knowingly encourage facilitate or knowingly facilitate inquiries or proposals with respect to induce any Acquisition Proposal, (ii) engage or participate in any discussions or negotiations with regarding, or furnish or cause to be furnished to any person concerning any Acquisition Proposal, (iii) provide Person any confidential or nonpublic information or data in connection with, or take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, except to notify a Person that has made or, to the Knowledge of Beneficial, is making any inquiries with respect to, or have is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 7.2, (iii) approve, agree to, accept, endorse or participate in recommend any discussions withAcquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any person Acquisition Agreement contemplating or otherwise 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 6.13) in connection with or relating to any Acquisition ProposalTransaction. Notwithstanding Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the event that after the date this Section 7.2 by any Subsidiary or Representative of Beneficial shall constitute a breach of this Agreement and prior Section 7.2 by Beneficial. In addition to the receipt foregoing, Beneficial shall not submit to the vote of its stockholders any Acquisition Proposal other than the Requisite Sterling VoteMerger.
(b) Notwithstanding anything to the contrary in Section 7.2(a), in the case if Beneficial or any of Sterling, or the Requisite Webster Vote, in the case of Webster, a party its Representatives receives an unsolicited unsolicited, bona fide written Acquisition ProposalProposal by any Person at any time prior to the Beneficial Stockholder Approval that did not result from or arise in connection with a breach of Section 7.2(a), such party Beneficial and its Representatives may, prior to (but not after) the Beneficial Meeting, take the following actions if the board of directors of Beneficial (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with Beneficial’s financial advisors and may permit its Subsidiaries and its and its Subsidiaries’ Representatives tooutside legal counsel), furnish or cause to be furnished confidential or nonpublic information or data and participate in that such negotiations or discussions with the person making the Acquisition Proposal if constitutes or would reasonably be expected to lead to a Superior Proposal and that 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 reasonably likely than not cause it to result in a violation of violate its fiduciary duties under applicable law; providedLaw, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, and (ii) obtained from such party shall have entered into a Person an executed confidentiality agreement containing terms at least as restrictive with respect to such Person as the person making such Acquisition Proposal on terms no less favorable to it than of the Confidentiality Agreement, which Agreement is in each provision with respect to WSFS (and such confidentiality agreement shall not provide such person Person with any exclusive right to negotiate with Beneficial): (A) furnish information or data to (but only if Beneficial shall have provided such party. Each party willinformation to WSFS prior to furnishing it to any such Person), and (B) enter into discussions and negotiations with, such Person with respect to such unsolicited, bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that would reasonably be expected to lead to any Acquisition Proposal, Beneficial shall advise WSFS in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry), and Beneficial shall as promptly as practicable provide to WSFS (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Beneficial shall provide WSFS as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep WSFS informed on a current basis of all developments, discussions, negotiations and communications regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Beneficial Meeting, the board of directors of Beneficial may make a Change in the Beneficial Recommendation (including, for the avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if (i) Beneficial has received a Superior Proposal (after giving effect to the terms of any revised offer by WSFS pursuant to this Section 7.2(d)), and (ii) the board of directors of Beneficial has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Beneficial may not take the actions set forth in this Section 7.2(d) unless:
(i) Beneficial has complied in all material respects with this Section 7.2;
(ii) Beneficial has provided WSFS at least three Business Days prior written notice of its intention to take such action and a reasonable description of the events or circumstances giving rise to its determination to take such action (including all necessary information under Section 7.2(c));
(iii) during such three Business Day period, Beneficial has and has caused its financial advisors and outside legal counsel to, consider and negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by WSFS; and
(iv) the board of directors of Beneficial has determined in good faith, after consultation with outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal and that failure to make a Change in the Beneficial Recommendation would be a violation of the director’s fiduciary duties under applicable Law and, in which event, the board of directors of Beneficial may communicate the basis for its lack of Beneficial Recommendation to its stockholders in the Joint Proxy/Prospectus or an appropriate amendment or supplement thereto to the extent required by Law; provided, that the resolution approving this Agreement as of the date hereof may not be rescinded or amended. Any material amendment to any Superior Proposal, will cause be deemed to be a new Superior Proposal for purposes of this Section 7.2(d) and will require a new determination and notice period as referred to in this Section 7.2(d).
(e) Notwithstanding anything herein to the contrary, at any time prior to the WSFS Meeting, the board of directors of WSFS may make a Change in the WSFS Recommendation, if the board of directors of WSFS has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of WSFS may not take the actions set forth in this Section 7.2(e) unless:
(i) WSFS has provided Beneficial at least three Business Days prior written notice of its intention to take such action and a reasonable description of the events or circumstances giving rise to its determination to take such action;
(ii) during such three Business Day period, WSFS has and has caused its financial advisors and outside legal counsel to, consider and negotiate with Beneficial in good faith (to the extent Beneficial desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by Beneficial; and
(iii) the board of directors of WSFS has determined in good faith, after consultation with outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed by Beneficial, if any, that failure to make a Change in the WSFS Recommendation would be a violation of the director’s fiduciary duties under applicable Law and, in which event, the board of directors of WSFS may communicate the basis for its lack of WSFS Recommendation to its stockholders in the Joint Proxy/Prospectus or an appropriate amendment or supplement thereto to the extent required by Law; provided, that the resolution approving this Agreement as of the date hereof may not be rescinded or amended.
(f) Beneficial and Beneficial Subsidiaries shall, and Beneficial shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Persons conducted heretofore with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal offer or any inquiry which could proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than WSFS and its Representatives) that has made or indicated an intention to make an Acquisition Proposal, and the substance thereof (including the terms and conditions iii) not waive or amend any “standstill” provision or provisions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements similar effect to which it or any of its Subsidiaries is a party in accordance with the terms thereof. As used or of which it is a beneficiary and shall strictly enforce any such provisions.
(g) Nothing contained in this Agreement, “Acquisition Proposal” means, Agreement shall prevent Beneficial or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to Webster an Acquisition Proposal or Sterlingfrom making any legally required disclosure to the stockholders of Beneficial; provided, as applicable, other than that such rules will in no way eliminate or modify the transactions contemplated by effect that any action pursuant to such rules would otherwise have under this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (WSFS Financial Corp), Merger Agreement (Beneficial Bancorp Inc.)
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries not to, and will use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposal, (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 (except to notify a person that has made or, to the Knowledge of such Party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.09) 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 similar agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.09) 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 Sterling VoteParent Shareholder Approval, in the case of SterlingParent, or the Requisite Webster VoteCompany Shareholder Approval, in the case of Websterthe Company, a party Party receives an unsolicited bona fide written Acquisition Proposal, such party Party may, and may permit its Subsidiaries and its 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 board of Directors directors of such party 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 lawLaw; provided, that, that prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyParty. Each party Party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four (24) hours) advise the other party Party following receipt of any Acquisition Proposal or any inquiry which could would reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party Party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicablea Party, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party such Party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party such Party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partysuch Party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party such Party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partysuch Party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, 25% or more of any class of equity or voting securities of a party Party or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partysuch Party.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Heritage Commerce Corp), Agreement and Plan of Reorganization and Merger (Heritage Commerce Corp)
Acquisition Proposals. (a) Each party MainSource 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify such person of the foregoingexistence of the provisions of this Section 6.12(a); provided, that, prior to the adoption of this Agreement by the shareholders of MainSource by the Requisite MainSource Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party MainSource receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party MainSource shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it than the Confidentiality AgreementAgreement and which is expressly assignable to First Financial, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partyMainSource. Each party MainSource will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party First Financial with respect to any Acquisition Proposal. Each party MainSource will promptly (within twenty-four (24) hours) advise the other party First Financial following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and a copy thereof if in writing and any draft agreements, proposals related documentation or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposalcorrespondence), and will keep the other party First Financial apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party MainSource shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 2520% or more of the consolidated assets of a party MainSource and its Subsidiaries or 2520% or more of any class of equity or voting securities of a party MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of the partyMainSource, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 2520% or more of any class of equity or voting securities of a party MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of the partyMainSource, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute 25more than 20% or more of the consolidated assets of the partyMainSource.
Appears in 2 contracts
Sources: Merger Agreement (Mainsource Financial Group), Merger Agreement (First Financial Bancorp /Oh/)
Acquisition Proposals. (a) Each party Prior to the Effective Time, the Company agrees that it will notneither it, and will cause each nor any of its Subsidiaries and its and or Affiliates, nor any of their respective directors, officers, directors, employees, agentsagents or representatives, advisors and representatives (collectively, “Representatives”) not towill, directly or indirectly, (i) solicit, initiate, solicit, knowingly facilitate or encourage (including by way of furnishing or knowingly facilitate disclosing non-public information) any inquiries or proposals the making of any proposal with respect to any merger, consolidation or other business combination involving the Company or any Subsidiary of the Company, the acquisition of all or any significant part of the assets or capital stock of the Company or any Subsidiary of the Company (an "Acquisition Transaction") or (ii) negotiate, explore or otherwise engage in discussions with any Person (other than Parent and its representatives) with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toTransaction, or have or participate in any discussions withwhich may reasonably be expected to lead to a proposal for an Acquisition Transaction, 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 arrangement or other agreement understanding with respect to any such Acquisition Transaction; provided, however, that the Company may, in response to an unsolicited written proposal from a third party regarding a Superior Proposal (whether written or oralas hereinafter defined), binding or nonbinding) (other than a confidentiality agreement referred furnish information to and entered into engage in accordance discussions and negotiations with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoingsuch third party, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 but only if the Board of Directors of such party concludes the Company determines in good faith (faith, after receiving the advice of consultation with its financial advisors and outside independent counsel, that taking such action is in the best interests of the Company and its shareholders and such action is consistent 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 lawLaw. If specifically requested by a Person without prior contact from the Company or its representatives, the Company may waive the provisions of any "standstill" agreements between the Company and any Person to the extent necessary to permit such Person to submit a proposal for an Acquisition Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Proposal; provided, that such waiver (i) does not violate or conflict with the foregoing provisions of this Section 2.3(a) and (ii) would not, in any event, permit such Person to acquire any direct or indirect beneficial ownership of shares of Company Common Stock or participate in any tender offer or proxy solicitation relating to shares of the Company Common Stock that would otherwise be prohibited by such "standstill" agreement. It is understood and agreed, without limitation of the Company's obligations, that any violation of this Section 2.3 by any director, officer, Affiliate, investment banker, financial advisor, attorney or other advisor or representative of the Company, whether or not such Person is purporting to act on behalf of the Company, or otherwise, shall be deemed to be a breach of this Section 2.3 by the Company.
(b) The Company agrees that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentenceas of the date hereof, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreementit, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives toAffiliates, and the respective directors, officers, employees, agents and representatives of the foregoing, shall immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person Person (other than the other party Parent and its representatives) conducted heretofore with respect to any Acquisition ProposalTransaction. Each party will The Company agrees to promptly advise Parent in writing of the existence of (within twenty-four x) any inquiries or proposals (24or desire to make a proposal) hours) advise the other party following receipt of received by (or indicated to), any Acquisition Proposal such information requested from, or any inquiry which could reasonably negotiations or discussions sought to be expected to lead initiated or continued with, the Company, its Subsidiaries or Affiliates, or any of the respective directors, officers, employees, agents or representatives of the foregoing, in each case from a Person (other than Parent and its representatives) with respect to an Acquisition ProposalTransaction, and the substance thereof (including y) the terms and conditions of and thereof, including the identity of such third party and the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy terms of any such Acquisition Proposal and any draft agreements, proposals financing arrangement or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal commitment in connection with such inquiry or Acquisition ProposalTransaction, and will keep to update on an ongoing basis or upon Parent's reasonable request, the status thereof. As used herein, "Superior Proposal" means a bona fide, written and unsolicited proposal or offer made by any Person (or group) (other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it than Parent or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, Subsidiaries) with respect to Webster or Sterlingan Acquisition Transaction on terms which, as applicabledetermined by the Board of Directors of the Company in good faith (based on the written advice of independent financial advisors) and in a manner consistent with its fiduciary duties under applicable Law, other are more favorable, from a financial point of view, to the Company and its Shareholders than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyhereby.
Appears in 2 contracts
Sources: Merger Agreement (Supervalu Inc), Merger Agreement (Richfood Holdings Inc)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to, and will use its reasonable best efforts to cause 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, (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 (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.13(a)), (iv) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract), or (ivv) 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 6.136.13) 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 Sterling AUB Vote, in the case or AUB, or the Requisite SASR Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterSASR, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its 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 provided such information to the other party and entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyparty or otherwise prevent the party from providing any information to the other party in accordance with this Agreement or otherwise comply with its obligations under this Agreement, and provided the other with at least one (1) business day prior notice of taking any such action. Each party will, and will cause its Subsidiaries and Representatives to, (x) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party SASR or AUB, as applicable, with respect to any Acquisition Proposal and (y) request the prompt return or destruction of all confidential information previously furnished to any person (other than the parties hereto and its Representatives) that has made or indicated an intention to make an Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any request for nonpublic information or any other inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within twenty-four (24) hours) of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster AUB or SterlingSASR, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, twenty-five percent (25%) or more of any class of equity or voting securities of a party or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Sandy Spring Bancorp Inc), Merger Agreement (Atlantic Union Bankshares Corp)
Acquisition Proposals. (a) Each party Patriot 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify such person of the foregoingexistence of the provisions of this Section 6.11(a); provided, that, prior to the adoption of this Agreement by the shareholders of Patriot by the Requisite Patriot Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Patriot receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 inconsistent with its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party Patriot shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyPatriot. Each party Patriot will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Green with respect to any Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Green and its affiliates) pursuant to any such agreement. Each party Patriot will promptly (within twenty-four (24) hours) advise the other party Green following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal and copies of any written Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Green apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
Acquisition Proposals. (a) Each party Seller agrees that it will not, and will cause each of its Seller Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (such individuals with respect to either party, collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (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 (other than any discussions to clarify the terms and conditions of any Acquisition Proposal) 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, indication of interest, 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 6.136.11) 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 Sterling Seller Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Seller receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11, such party Seller may, and may permit its Seller Subsidiaries and its and its Seller 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 Seller concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its outside financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary the duties of the directors of Seller under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Seller shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partySeller. Each party Seller will, and will cause its Seller Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Buyer with respect to any Acquisition Proposal. Each party Seller will promptly (within twenty-four (24) hours) advise the other party Buyer following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the general substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposalthereof. Each party Seller shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Seller Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, means other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (iA) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party Seller and its Seller Subsidiaries or 25% or more of any class of equity or voting securities of a party Seller or its Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySeller, (iiB) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party Seller or its Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySeller, or (iiiC) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party Seller or its Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySeller.
Appears in 2 contracts
Sources: Merger Agreement (BankFinancial CORP), Merger Agreement (BankFinancial CORP)
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.136.12) 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 Sterling CrossFirst Vote, in the case of SterlingCrossFirst, or the Requisite Webster Busey Vote, in the case of WebsterBusey, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 outside 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster Busey or SterlingCrossFirst, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (iA) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (iiB) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iiiC) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (First Busey Corp /Nv/), Merger Agreement (Crossfirst Bankshares, Inc.)
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling First Midwest Vote, in the case of SterlingFirst Midwest, or the Requisite Webster Old National Vote, in the case of WebsterOld National, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 outside 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster Old National or SterlingFirst Midwest, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (First Midwest Bancorp Inc), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Each party agrees that it will Anchor shall not, and will shall cause each of its Subsidiaries and cause 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event that after the date of this Agreement and that, prior to the receipt of the Requisite Sterling Anchor Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event Anchor receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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 advisorsadvisor) that failure to take such actions would be more likely than not to to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Anchor shall have provided such party information to Old National, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyAnchor. Each party Anchor will, and will cause its Subsidiaries and the Representatives of Anchor and its Subsidiaries to, (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Old National with respect to any Acquisition Proposal. Each party will promptly , (within twenty-four (24B) hours) advise request and confirm the other party following receipt prompt return or destruction of all confidential information previously furnished with respect to any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal)C) not terminate, will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.waive,
Appears in 2 contracts
Sources: Merger Agreement (Anchor Bancorp Wisconsin Inc), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Each party agrees that it The Company will not, and will not permit or cause each any of its Subsidiaries or any of its or its Subsidiaries officers or directors to, and shall direct its and its and their respective officers, directors, employees, agents, advisors and representatives Subsidiaries' Representatives (collectively, “Representatives”as defined in Section 6.6(a)(i)) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalilzation or similar transaction involving, or any purchase of 15% or more of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its Subsidiaries or any of its or its Subsidiaries officers or directors to, and shall direct its and its Subsidiaries' Representatives (iiincluding any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person 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 6.13) in connection with or relating to any an Acquisition Proposal. Notwithstanding the foregoing, in the event that whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal (including, without limitation, by means of an amendment to the Rights Agreement); provided, however, that nothing contained in this Agreement and shall prevent the Company or its board of directors from: (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) at any time prior to the receipt approval of the Merger by the Company Requisite Sterling Vote, Vote (A) providing information in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, response to a party receives request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal, Proposal if the board of directors receives from the Person so requesting such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause information an executed confidentiality agreement on terms substantially equivalent to be furnished confidential or nonpublic information or data and participate those contained in such the Confidentiality Agreement (as defined in Section 9.7); (B) engaging in any negotiations or discussions with the person making the any Person who has made an unsolicited bona fide written Acquisition Proposal or (C) recommending such an Acquisition Proposal to the stockholders of the Company, if and only to the Board extent that, in the case of Directors clauses (A), (B) and (C) above, (i) the board of directors of the Company determines in good faith, after consultation with and receipt of advice of outside legal counsel, that such party concludes action is required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the board of directors of the Company determines in good faith (after receiving consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the advice of its outside counselproposal and the Person making the proposal, and with respect to financial matterswould, its financial advisors) that failure to take such actions would be more likely than not to if consummated, result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing more favorable transaction than the transaction contemplated by this Agreement (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 being referred to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partyin this Agreement as a "Superior Proposal"). Each party will, and The Company will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties conducted heretofore with respect to any Acquisition Proposalof the foregoing. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement. The Company will notify Parent promptly, but in any event not later than one day following receipt of receipt, if any Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to an Acquisition Proposalinitiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposaloffers and thereafter shall keep Parent informed, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such negotiations or discussions. The Company also will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements dispose of all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyagreement.
Appears in 2 contracts
Sources: Merger Agreement (Orion Capital Corp), Merger Agreement (Royal Group Inc/)
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, and will cause each nor any of its Subsidiaries and its and nor any of their respective officers, directorsdirectors and employees shall, employees, agents, advisors and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors and employees shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company Board from (A) complying with its disclosure obligations under federal or state law; (B) at any time prior, but not after the Company Meeting is convened, providing information in response to a request therefor by a Person who has made an unsolicited bona fide written 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 if the Company Board receives from the Person so requesting such information an executed confidentiality agreement referred on terms not less restrictive to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, other party than those contained in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, Confidentiality Agreement; (C) engaging in the case of Sterling, any negotiations or the Requisite Webster Vote, in the case of Webster, a party receives discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal, ; or (D) recommending such party may, and may permit its Subsidiaries and its 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 an Acquisition Proposal to the shareholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the Company Board of Directors of such party concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that failure such action is, in the absence of the foregoing proscriptions, legally required in order for its directors to take such actions would be more likely than not to result in a violation of its comply with their respective fiduciary duties under applicable law; providedLaw and (ii) in each such case referred to in clause (C) or (D) above, 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 the Company Board determines in good faith (after consultation with the person making its financial advisor) that such Acquisition Proposal on terms no less favorable to is a Superior Proposal. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt individuals referred to in the first sentence hereof of the obligations undertaken in this Section 6.06. The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to an Acquisition Proposalinitiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of any proposal or offer and the identity of the person making such inquiry or Acquisition Proposal)thereafter shall keep Parent informed, will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce offers and the status of any existing confidentiality such discussions or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofnegotiations. As used in this Agreement, (i) “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, means (i) any acquisition proposal or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) with respect to a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution combination or other similar transaction involving a party the Company or any of its Subsidiaries whose assets, individually and (ii) any proposal or in the aggregate, constitute 25% or more of the consolidated assets of the party.offer to
Appears in 2 contracts
Sources: Merger Agreement (Bank of Marin Bancorp), Merger Agreement (Bank of Marin Bancorp)
Acquisition Proposals. (a) Each party agrees that it will notof Parent and the Company shall, and will shall cause each of its Subsidiaries and its and their its Subsidiaries’ respective officers, executive officers and directors, and direct its and its Subsidiaries’ respective employees, agents, accountants, consultants, investment bankers, advisors and representatives (collectivelycollectively and together with executive officers and directors, “Representatives”) to, immediately cease, and cause to be terminated, any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the Company, in the case of Parent, or Parent, in the case of the Company, with respect to any Acquisition Proposal.
(b) Each of Parent and the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ respective executive officers and directors not to, and direct its and its Subsidiaries’ respective Representatives that are not executive officers or directors not to, directly or indirectly, (iA) solicit, initiate, solicit, seek or support or knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iiiC) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal, except to notify a person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.9 or solely to clarify whether any such inquiry or offer constitutes an Acquisition Proposal or (ivD) 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, binding acquisition agreement, merger agreement or other definitive transaction agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.9(c)) in connection with or relating to any Acquisition Proposal. .
(c) Notwithstanding anything to the foregoingcontrary set forth in Section 6.9(a) and 6.9(b), prior to the approval of the Parent Share Issuance by the shareholders of Parent by the Requisite Parent Vote or the approval of the Merger and this Agreement by the stockholders of the Company by the Requisite Company Vote, as applicable, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, Parent or the Requisite Webster VoteCompany, in the case of Websteras applicable, a party receives an unsolicited bona fide written Acquisition Proposal after the date of this Agreement (which Acquisition Proposal did not result from a breach of this Section 6.9) and the Parent Board or the Company Board, as applicable, concludes in good faith (after receiving the advice of its outside counsel and its outside financial advisor) that such Acquisition Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal, such party Parent or the Company, as applicable, may, and may permit its Subsidiaries and its and its Subsidiaries’ respective Representatives toto furnish, furnish or cause to be furnished furnished, confidential or nonpublic information or data and participate in such negotiations or discussions with to the person making extent that the Acquisition Proposal if Parent Board or the Board of Directors of such party Company Board, as applicable, concludes in good faith (after receiving the advice of its outside counsel, counsel and with respect to its outside financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable lawLaw; provided, provided that, prior to furnishing providing any confidential or nonpublic information or data permitted to be provided pursuant to the foregoing provisions of this sentenceSection 6.9(c), such party (i) Parent or the Company, as applicable, shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable restrictive to it such person (or group of persons) than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willParent or the Company, as applicable, and will cause its Subsidiaries and Representatives to, immediately cease and cause (ii) any confidential or non-public information to be terminated any activitiesprovided by Parent or the Company, discussions as applicable, to such third party shall have been previously provided, or negotiations conducted before is concurrently provided, to the date Company, in the case of this Agreement with any person other than Parent, or Parent, in the other party with respect to any Acquisition Proposal. case of the Company.
(d) Each party of Parent and the Company will promptly (and, in any event, within twenty-four (24) hourshours after receipt) advise notify the other party Company, in the case of Parent, or Parent, in the case of the Company, in writing following its receipt after the date of this Agreement of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of of, and the identity of the person making making, such inquiry or Acquisition Proposal) and shall promptly (but in no event later than twenty-four (24) hours after receipt) provide to the Company, in the case of Parent, or Parent, in the case of the Company, copies of all material correspondence and written materials sent or provided to Parent or any of its Subsidiaries or the Company or any of its Subsidiaries, as applicable, that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters). In furtherance of the foregoing, Parent, in the case of the Company, or the Company, in the case of Parent, will provide promptly (and in any event within twenty-four (24) hours after receipt) notify the other party with an unredacted copy Company, in the case of any such Acquisition Proposal and any draft agreementsParent, proposals or other materials received from or on behalf Parent, in the case of the person making such inquiry or Acquisition Proposal Company, in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised writing of any related developments, discussions and negotiations on a current basisbasis (but in no event more than once every twenty-four (24) hours), including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party of Parent and the Company shall use its reasonable best efforts to enforce (and shall not grant any waiver in respect of) any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party party.
(e) Subject to Sections 8.1 and 8.2, if the Parent Board or the Company Board, after receiving the advice of its outside counsel and its outside financial advisor, determines in accordance good faith that it would be inconsistent with the terms thereof. As used in its fiduciary duties under applicable Law to continue to recommend this Agreement, “Acquisition Proposal” meansthen such Board may effect a Change in Parent Recommendation or Change in Company Recommendation, with respect to Webster as applicable (although the resolutions approving this Agreement as of the date hereof may not be rescinded or Sterlingamended), in which event such Board may communicate the basis for its Change in Parent Recommendation or Change in Company Recommendation, as applicable, other than to Parent’s shareholders or the transactions contemplated Company’s stockholders, as applicable, in the Joint Statement or an appropriate amendment or supplement thereto to the extent required by Law; provided that neither the Parent Board nor the Company Board may effect a Change in Parent Recommendation or a Change in Company Recommendation, as applicable, unless (i)(A) Parent or the Company, as applicable, has received an Acquisition Proposal after the date of this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more Agreement and prior to the receipt of the consolidated assets Requisite Company Vote or the Requisite Parent Vote, as applicable, that did not result from a breach of a party this Section 6.9 (and such proposal is not withdrawn) and the Parent Board or the Company Board, as applicable, determines in good faith (after receiving the advice of its outside counsel and its Subsidiaries outside financial advisor) that such Acquisition Proposal constitutes a Superior Proposal or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or (B)(1) in the aggregatecase of Parent, constitute 25% a Parent Intervening Event shall have occurred and the Parent Board determines in good faith (after receiving the advice of its outside counsel and its outside financial advisor) that continuing to make the Parent Recommendation would be inconsistent with its fiduciary duties under applicable Law or more (2) in the case of the consolidated assets Company, a Company Intervening Event shall have occurred and the Company Board determines in good faith (after receiving the advice of its outside counsel and its outside financial advisor) that continuing to make the partyCompany Recommendation would be inconsistent with its fiduciary duties under applicable Law, (ii) Parent gives the Company, in the case of the Parent Board, or the Company gives Parent, in the case of the Company Board, at least four (4) business days’ prior written notice of its intention to take such action (such period, as it may be extended by delivery of any tender offer subsequent notices, the “notice period”) and a reasonable description of the event or circumstances giving rise to its determination to take such action (including a self-tender offer(A) or exchange offer thatin the case of an Acquisition Proposal, if consummatedthe latest material terms and conditions of, would result in such and the identity of any third party beneficially owning 25% making, any such Acquisition Proposal and any amendment or more of any class of equity modification thereof or voting securities (B) in the case of a party Parent Intervening Event or its Subsidiaries whose assetsa Company Intervening Event, individually or in as applicable, the aggregate, constitute 25% or more nature of the consolidated assets of Parent Intervening Event or the partyCompany Intervening Event, or as applicable, in reasonable detail) and (iii) a mergerat the end of such notice period, consolidationeach of the Parent Board and the Company Board, share exchangeas applicable, business combinationtakes into account any amendment or modification to this Agreement proposed by the Company, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more case of the consolidated assets Parent Board (which shall be negotiated in good faith by Parent and the Company during such period if requested by the Company), or by Parent, in the case of the partyCompany Board (which shall be negotiated in good faith by the Company and Parent during such period if requested by Parent), and after receiving the advice of its outside counsel and its outside financial advisor, determines in good faith that it would nevertheless be inconsistent with its fiduciary duties under applicable Law to continue to recommend this Agreement. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.9, except that references to “four (4) business days” shall be deemed to be references to “two (2) business days.”
(f) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Sources: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Acquisition Proposals. (a) Each party agrees that it will Except to the extent expressly permitted by Section 7.17, from the date hereof until the Effective Time or, if earlier, the date on which this Agreement is terminated in accordance with Article IX, the Company shall not, and will shall cause each of its Subsidiaries and its and their its Subsidiaries’ respective officers, directors, employees, agents, advisors agents and representatives (collectivelyincluding any investment bankers, attorneys or accountants retained by it or any of its Subsidiaries) (“Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries (including by way of providing confidential information) the submission of any inquiries, proposals or proposals with respect offers (whether firm or hypothetical) or any other efforts or attempts that constitute or may reasonably be expected to lead to, any Acquisition Proposal, (ii) have any discussions with or provide any confidential information or data to any person relating to an Acquisition Proposal, or engage or participate in any negotiations with any person concerning any an Acquisition Proposal, (iii) provide any confidential approve or nonpublic information or data to, or have or participate in any discussions with, any person relating to recommend any Acquisition Proposal Proposal, or (iv) unless this Agreement has been terminated in accordance with its terms, approve or recommend, or propose publicly to approve or recommend, or execute or enter into into, any term sheet, letter of intent, commitmentagreement in principle, memorandum of understanding, agreement in principle, acquisition merger agreement, merger asset or share purchase or share exchange agreement, option agreement or other similar agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating related to any Acquisition Proposal; provided, however, that it is understood and agreed that any Change in Company Recommendation permitted under Section 7.3(b) shall in and of itself not be deemed to be a breach or violation of this Section 7.4(a). Notwithstanding the foregoingforegoing provisions of this Section 7.4(a), in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition Proposal and the Company’s board of directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, such party the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ their Representatives to, furnish or cause prior to be furnished confidential or nonpublic information or data and participate (but not after) the date of the Company Shareholders Meeting, take any action described in such negotiations or discussions with clause (ii) above to the person making extent that the Acquisition Proposal if the Board Company’s board of Directors of such party directors 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 reasonably likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, thathowever, that prior to furnishing providing (or causing to be provided) any confidential information or nonpublic information data permitted to be provided pursuant to this sentence, such party the Company shall have entered into a written confidentiality agreement with the person making such Acquisition Proposal third party on terms no less favorable to it the Company than the Company Confidentiality AgreementAgreement and the Company shall promptly provide to Parent an executed copy of such confidentiality agreement; and provided, which confidentiality agreement further, that the Company shall not promptly provide Parent with any non-public information concerning the Company or its Subsidiaries provided to such person with any exclusive right which was not previously provided or made available to negotiate with such party. Each party will, and will cause Parent (or its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date Representatives).
(b) For purposes of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, means any offerinquiry, proposal or inquiry relating to, offer from any person (other than Parent or any third party indication of interest in, its Subsidiaries) relating to any direct or indirect (i) any acquisition acquisition, purchase or purchasesale of a business, direct deposits or indirect, of 25assets that constitute 20% or more of the consolidated business, revenues, net income, assets (including stock of a party the Company’s Subsidiaries) or deposits of the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySubsidiaries, (ii) merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries, or (iii) purchase or sale of, or tender or exchange offer (including a self-tender offer) for, securities of the Company or exchange offer any of its Significant Subsidiaries that, if consummated, would result in any person (or the shareholders of such third party person) beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25representing 20% or more of the consolidated assets equity or total voting power of the partyCompany, any of its Significant Subsidiaries or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or the surviving parent entity in the aggregate, constitute 25% or more of the consolidated assets of the partysuch transaction.
Appears in 2 contracts
Sources: Merger Agreement (Toronto Dominion Bank), Merger Agreement (Commerce Bancorp Inc /Nj/)
Acquisition Proposals. (a) Each party agrees that it NAL will not, and will cause each of its Subsidiaries and its and their respective officers, directors, its Subsidiaries’ officers and directors not to and will use its reasonable best efforts to cause its and its Subsidiaries’ employees, agents, advisors and representatives (collectively, “Representatives”) other Representatives and affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) or engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or 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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, ; provided that in the event that after the date of this Agreement and event, prior to the receipt time the NAL Requisite Vote is obtained but not after, (1) NAL receives, after the execution of the Requisite Sterling Votethis Agreement, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition ProposalProposal from a person other than FNFG, and (2) the NAL Board concludes in good faith (A) that such party Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would result in a violation of the directors’ fiduciary duties under the DGCL, NAL may, and may permit its Subsidiaries and its 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) such Acquisition Proposal; provided 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 providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party it shall have entered into an agreement with such third party on terms substantially similar to those contained in the Confidentiality Agreement (except that NAL may enter into a confidentiality agreement without a standstill provision or with the person making such Acquisition Proposal on terms no a standstill provision less favorable to NAL if and only if it than first waives or similarly modifies the standstill provision in the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party). Each party will, and NAL will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than the other party FNFG with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Each party NAL will promptly (within twenty-four (24) hoursone business day) advise the other party FNFG following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party FNFG apprised of any related developments, discussions and negotiations (including the terms and conditions of such Acquisition Proposal) on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used .
(b) Nothing contained in this AgreementAgreement shall prevent NAL or the NAL Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act, “Acquisition Proposal” meansor other disclosure requirements under applicable law or the NYSE or the NASDAQ rules, with respect to Webster an Acquisition Proposal; provided that such rules will in no way eliminate or Sterling, as applicable, other than modify the transactions contemplated by effect that any action pursuant to such Rules would otherwise have under this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Newalliance Bancshares Inc), Merger Agreement (First Niagara Financial Group Inc)
Acquisition Proposals. (a) Each party agrees that it will Susquehanna shall not, and will shall 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding ; provided, that, prior to receipt of the foregoingRequisite Susquehanna Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Susquehanna receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Susquehanna shall have provided such party information to Parent, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partySusquehanna. Each party Susquehanna will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party Susquehanna will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within one (1) business day) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.a
Appears in 2 contracts
Sources: Merger Agreement (Bb&t Corp), Merger Agreement (Susquehanna Bancshares Inc)
Acquisition Proposals. (a) Each party agrees that it will Company shall not, and will shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding ; provided, that, prior to receipt of the foregoingRequisite Company Vote, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Company shall have provided notice to Parent of its intention to provide such party information, and shall have provided such information to Parent if not previously provided to Parent, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyCompany. Each party Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party Company will promptly (and in any event within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Company shall use its reasonable best efforts efforts, subject to applicable law, to (x) enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with the terms thereof. its terms, Company shall not, and shall cause its Subsidiaries and its and their officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.10(a)) relating to any Acquisition Proposal).
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% twenty percent (20%) or more of the consolidated assets of a party Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more than twenty percent (20%) of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% twenty percent (20%) or more of any class of equity or voting securities of a party Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more than twenty percent (20%) of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, other business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more than twenty percent (20%) of the consolidated assets of Company, except, in each case, any sale of whole loans and securitizations in the partyordinary course of business and any bona fide internal reorganization.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will TCF shall not, and will shall cause each of its Subsidiaries and use its reasonable best efforts to cause 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 Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any TCF Acquisition Proposal, except to notify a person that has made or, to the knowledge of TCF, is making any inquiries with respect to, or is considering making, a TCF 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 the existence 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 the provisions of this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing6.13(a); provided, in the event that after the date of this Agreement and that, prior to the receipt of the Requisite Sterling TCF Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event TCF receives an unsolicited bona fide written TCF Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, TCF shall have provided such party information to Huntington, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyTCF. Each party TCF will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Huntington with respect to any TCF Acquisition Proposal. Each party TCF will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Huntington following receipt of any TCF Acquisition Proposal or any inquiry which could reasonably be expected to lead to an a TCF Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or TCF Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, ) and will keep the other party Huntington 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 TCF Acquisition Proposal. Each party TCF shall use its reasonable best efforts efforts, subject to applicable law and the fiduciary duties of the Board of Directors of TCF, 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. During the term of this Agreement, TCF shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13(a)) relating to any TCF Acquisition Proposal. As used in this Agreement, “TCF Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party TCF and its Subsidiaries or 25% or more of any class of equity or voting securities of a party TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyTCF, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyTCF, or (iii) a merger, consolidation, share exchange, exchange or other business combination, reorganization, recapitalization, liquidation, dissolution reorganization or other similar transaction involving a party TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyTCF.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it Golden West will not, and will cause each of its Subsidiaries and its and their respective its Subsidiaries’ officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) or engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or 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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Golden West receives an unsolicited bona fide written Acquisition Proposal, from a Person other than Wachovia or an Other Person (as defined below), after the execution of this Agreement, and the Golden West Board concludes in good faith that such party Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions would result in a violation of the directors’ fiduciary duties under applicable law, Golden West may, and may permit its Subsidiaries and its 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) discussions; provided 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 providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party it shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and Golden West will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than the other party Wachovia (“Other Persons”) with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Each party Golden West will promptly (within twenty-four (24) hoursone business day) advise the other party Wachovia following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Wachovia apprised of any related developments, discussions and negotiations (including the material terms and conditions of the Acquisition Proposal) on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used .
(b) Nothing contained in this Agreement, “Acquisition Proposal” means, Agreement shall prevent Golden West or the Golden West Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to Webster an Acquisition Proposal, provided that such Rules will in no way eliminate or Sterling, as applicable, other than modify the transactions contemplated by effect that any action pursuant to such Rules would otherwise have under this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (Wachovia Corp New)
Acquisition Proposals. (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, indirectly (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, ; (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, with any person relating to any Acquisition Proposal 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 6.136.12) 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 Sterling Allegiance Vote, in the case of SterlingAllegiance, or the Requisite Webster CBTX Vote, in the case of WebsterCBTX, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.take
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company 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 inquiries or proposals with respect to any Acquisition Proposal, (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 Proposal, or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, indication of interest, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or nonbindingnon-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11(a)) in connection with or relating to any Acquisition Proposal, except in each case to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a). Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Company Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11(a), such party the Company may, and may permit its Subsidiaries and its 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 the Company 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, provided that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party The Company will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Parent with respect to any Acquisition Proposal. Each party The Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof Proposal (including the terms and conditions of of, and the identity of the person making making, such inquiry or Acquisition Proposal), will provide the other party Parent with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party The Company shall use its reasonable best efforts 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. .
(b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.
(c) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party the Company and its Subsidiaries or 25% or more of any class of equity or voting or nonvoting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyCompany, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting or nonvoting securities of a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the partyCompany, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will Stellar shall not, and will shall cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (ia) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposalto, (iib) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iiic) 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 termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding , except to notify a person that has made or, to the foregoingknowledge of Stellar, in is making any inquiries with respect to, or is considering making, an Acquisition Proposal of the event that after existence of the date provisions of this Agreement and Section 6.11; provided, that, prior to the receipt of the Requisite Sterling Stellar Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event Stellar receives an unsolicited bona fide written Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that its 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, further, that, prior to furnishing or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, Stellar shall have provided such party information to Prosperity, and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyStellar. Each party Stellar will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Prosperity with respect to any Acquisition Proposal. Each party Stellar shall, and shall cause its Subsidiaries to, promptly request (to the extent it has not already done so prior to the date of this Agreement) any person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Acquisition Proposal that remains in effect as of the date of this Agreement to return or destroy all confidential information of Stellar or its Subsidiaries in the possession of such Person or its Representatives. Stellar will promptly (and in any event within twenty-four (24) hours) advise the other party Prosperity following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.the
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notSVBank shall, and will shall cause each of its Subsidiaries and its and their respective officersAffiliates, directors, officers, employees, agents, advisors agents and representatives (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by it) (all of the foregoing, collectively, “Representatives”) to, immediately cease any written or oral discussions, negotiations or communication with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal, and will enforce any confidentiality or similar agreement relating to any Acquisition Proposal, including by requesting the other party to promptly return or destroy any confidential information previously furnished by or on behalf of SVBank or any Affiliate thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction. SVBank has cancelled access to any third party which has been granted access to any virtual or other data room maintained by or on behalf of SVBank other than CVCY, Central Valley Community Bank and its financial and legal advisors.
(b) From the date of this Agreement through the Effective Time, SVBank shall not, and shall cause its Representatives not to, directly or indirectlyindirectly through another Person, (i) initiate, solicit, initiate or knowingly encourage (including by way of knowingly furnishing information or knowingly assistance), or take any other action designed to facilitate or that could reasonably be expected to result in, any inquiries or proposals with respect the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, (ii) engage provide any confidential information or participate in data to any negotiations with any person concerning Person relating to any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions withor negotiations regarding any Acquisition Proposal, (iv) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligations of any Person other than CVCY, Central Valley Community Bank or their respective Affiliates, (v) approve or recommend, propose to approve or recommend, or execute or enter into, any person relating letter of intent, agreement in principle, merger agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal or propose to do any of the foregoing, or (ivvi) unless this Agreement has been terminated make or authorize any statement, recommendation or solicitation in accordance with its terms, approve or enter into any term sheet, letter support 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date For purposes of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, the term “Acquisition Proposal” meansmeans any inquiry, with respect proposal or offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to Webster do any of the foregoing from any Person relating to any (x) direct or Sterling, indirect acquisition or purchase of any material assets or deposits (as applicable) of SVBank, (y) direct or indirect acquisition or purchase of more than 25% of any class of Equity Securities of SVBank, or (z) merger, consolidation, business combination, recapitalization, tender offer, stock purchase, liquidation, dissolution or similar transaction involving SVBank, other than the transactions contemplated by this Agreement, . SVBank agrees that any offer, proposal or inquiry relating to, or violation of this Section 5.7 by any third party indication Representative of interest in, SVBank with the knowledge of SVBank shall be deemed a breach of this Section 5.7 by SVBank. SVBank acknowledges that this Section 5.7 is a significant inducement for CVCY and Central Valley Community Bank to enter into this Agreement and the absence of such provision would have resulted in either (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or material reduction in the aggregateconsideration to be paid to shareholders of SVBank in the Merger, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyfailure to induce CVCY and Central Valley Community Bank to enter into this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Central Valley Community Bancorp)
Acquisition Proposals. (a) Each party agrees that Subject to Section 6.3(b), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not and shall cause its Subsidiaries not to, nor shall it will notpermit its or its Subsidiaries’ Company Representatives to, and will shall use reasonable best efforts to cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) such Company Representatives not to, directly or indirectly, : (i) solicit, initiate, solicit, or knowingly encourage or knowingly facilitate inquiries the submission, announcement or proposals making of, any Acquisition Proposal by any Person; (ii) furnish or otherwise provide access to any non-public information regarding any of the Company or its Subsidiaries to any Person in connection with, or in response to, an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, except to state that such discussions or negotiations are not permitted pursuant to these provisions; or (iiiv) grant any waiver, amendment or release under, or fail to enforce any standstill provision concerning an Acquisition Proposal or any confidentiality provision of a confidentiality agreement entered into in connection with a transaction that would qualify as an Acquisition Proposal, except to the extent that the Company Board determines in good faith that such grant or release would result in a Superior Proposal being made by the Person subject to such standstill or confidentiality provision. Subject to Section 6.3(b), promptly after the date hereof the Company shall cease and cause to be terminated any solicitation, encouragement, knowing facilitation, discussion or negotiation with any Persons conducted theretofore by the Company, its Subsidiaries or any of their respective Company Representatives with respect to any Acquisition Proposal. Within two (2) Business Days of the date hereof, the Company shall request each Person that executed a confidentiality agreement within the past year in connection with any transaction that would qualify as an Acquisition Proposal if proposed after the date hereof to return or destroy all non-public information furnished by or on behalf of the Company, its Subsidiaries or its Company Representatives.
(b) Notwithstanding anything to the contrary contained in Section 6.3(a), if at any time prior to the Company Stockholders Meeting, the Company receives a bona fide Acquisition Proposal which the Company Board determines in good faith (after consultation with its financial and outside legal advisors) constitutes or could reasonably be expected to result in a Superior Proposal, the Company may, in response to such Acquisition Proposal (provided such Acquisition Proposal did not result from a breach by the Company of Section 6.3(a), this Section 6.3(b) or Section 6.3(c)), (A) furnish information (including non-public information) with respect to it and its Subsidiaries to any Person making such Acquisition Proposal pursuant to a customary confidentiality agreement (an “Acceptable Confidentiality Agreement”), the terms of which shall not be less restrictive to the other party than the Confidentiality Agreement is to Parent, and (B) engage or participate in discussions and negotiations regarding such Acquisition Proposal; provided, however, that prior to taking any negotiations action described in the foregoing clauses (A) or (B), (x) the Company Board shall have also determined, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (y) the Company shall have provided at least 24 hours prior notice to the Parent that it intends to take any person concerning of the actions described in the foregoing clauses (A) or (B) and (z) the Company shall have complied in all material respects with all of its obligations in Section 6.3(a), this Section 6.3(b) and Section 6.3(c). From and after the date hereof, if the Company receives an Acquisition Proposal, it shall promptly (and in any event within 24 hours of receipt thereof) (i) advise Parent in writing of such Acquisition Proposal and all of the material terms and conditions thereof and shall disclose the identity of the Person making the Acquisition Proposal and (ii) keep Parent promptly and reasonably informed with respect to the status of any such Acquisition Proposal and any material changes thereto, including providing Parent copies of all material draft agreements with respect thereto, in each case within 24 hours of receipt by the Company, Subsidiaries or its Company Representatives. In connection with furnishing or otherwise permitting the transmittal of any material non-public information to any Person pursuant to this Section 6.3(b), the Company shall (as a condition to furnishing or otherwise permitting the transmittal of such non-public information to such Person) concurrently furnish such non-public information to Parent to the extent it has not been previously furnished or made available by the Company to Parent.
(c) Except as expressly permitted by this Section 6.3, neither the Company Board, nor any committee thereof shall (i) withhold, withdraw, qualify or modify, or propose publicly to withhold, withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation (a “Change of Recommendation”), (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iii) provide any confidential cause or nonpublic information or data to, or have or participate in any discussions with, any person relating permit the Company 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 similar agreement or understanding (whether written or oral, binding or nonbindingan “Acquisition Agreement”) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating related to any Acquisition Proposal. , other than any Acceptable Confidentiality Agreement entered into pursuant to Section 6.3(b), (iv) fail to publicly recommend against any Acquisition Proposal or fail to publicly reaffirm the Company Recommendation within two Business Days after request by Parent or make any public statement that conflicts with the Company Recommendation, or (v) fail to include the Company Recommendation in the Proxy Statement; provided, however, that if the Board effects a Change of Recommendation pursuant to Section 6.3(d), then the requirements set forth in the foregoing clauses (ii)-(v) of this Section 6.3(c) shall not apply with respect to such Superior Proposal after such Change of Recommendation.
(d) Notwithstanding the foregoingimmediately preceding sentence, in prior to the event that after the date adoption of this Agreement and prior to by the receipt of Company’s stockholders at the Requisite Sterling VoteCompany Stockholders Meeting, in if the case of Sterling, or the Requisite Webster Vote, in the case of Webster, Company receives a party receives an unsolicited bona fide written Acquisition Proposal, such party may, Proposal from any Person that has not been withdrawn and may permit its Subsidiaries and its 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 that the person making the Acquisition Proposal if the Company Board of Directors of such party concludes determines in good faith is a Superior Proposal, then (after receiving x) the advice Company Board may effect a Change of its outside counsel, and Recommendation with respect to financial matterssuch Superior Proposal and (if desired) (y) the Company may terminate this Agreement to enter into an Acquisition Agreement with respect to such Superior Proposal (subject to Article VIII), but only if: (1) the Company has not materially breached its financial advisorsobligations under Section 6.3(a), Section 6.3(b),and Section 6.3(c), (2) the Company Board shall have determined, after good faith consultation with its legal counsel, that its failure to take effect a Change of Recommendation or to enter into such actions Acquisition Agreement would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; providedLaw, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party (3) the Company shall have entered into notified Parent in writing that it intends to effect a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date Change of this Agreement with any person other than the other party Recommendation with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition a Superior Proposal or any inquiry which could reasonably be expected that it intends to lead to enter into an Acquisition Agreement to effect such Superior Proposal (a “Proposal Notice”), with such notice specifying, the party making the Superior Proposal, and a description of the substance thereof (including the material terms and conditions of such Superior Proposal, including a copy of the Acquisition Agreement and all other agreements and material documents related thereto, and (4) the Company shall have allowed Parent three (3) Business Days following receipt of the Proposal Notice to submit a proposal (a “Subsequent Parent Proposal”) that the Company Board determines in good faith, after consultation with its financial advisor and legal counsel, to cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal and during such three Business Day period the Company and its Company Representatives shall meet with the Parent and its Representatives and negotiate in good faith during such period with respect to a Subsequent Parent Proposal (provided that if Parent makes a Subsequent Parent Proposal and there is subsequently any material change to the financial or other material terms of the Superior Proposal prior to the Company’s effecting a Change of Recommendation or terminating this Agreement, such proposal shall be considered a new Superior Proposal for purposes of this Section 6.3(d) and the identity Company shall comply with its obligations under this Section 6.3(d) with respect to such new Superior Proposal, including providing Parent a new Proposal Notice and providing Parent with a period of two (2) Business Days after the person making receipt of such inquiry new Proposal Notice to make another Subsequent Parent Proposal, which will be otherwise subject to the provisions of this Section 6.3(d)). Except immediately prior to the entry into an Acquisition Agreement in compliance with the terms of this Section 6.3 and Section 8.1(c)(ii) or Acquisition Proposalas otherwise required by Section 6.12, the Company shall not waive the Delaware Takeover Statue or the Washington Takeover Statute.
(e) Nothing in this Section 6.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a), will Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or other applicable Law, if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law; provided that the Company shall to the extent practicable provide the other party Parent with an unredacted copy of a reasonable opportunity to comment on and review any such disclosure. Provided the Company Board publicly reaffirms its approval and recommendation of this Agreement within ten (10) Business Days after a request by Parent to do so, no such disclosure of a position shall constitute a Change of Recommendation for the purposes of this Section 6.3. In addition, it is understood and agreed that, for purposes of this Section 6.3, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf the operation of Section 6.3 of the person making such inquiry or Acquisition Proposal in connection Agreement with such inquiry or Acquisition Proposalrespect thereto, and will keep the other party apprised contains “stop-look-and-listen” or similar communication shall not constitute a Change of any related developments, discussions Recommendation.
(f) For purposes of this Section 6.3 and negotiations on a current basis, including any amendments to or revisions all of the defined terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this AgreementSection 6.3, the term “Acquisition ProposalCompany Board” means, with respect shall be deemed to Webster or Sterlingmean the Company Board and/or the Special Committee, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (Intermec, Inc.)
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than Except for the transactions contemplated by this Agreement, Community Bankshares shall not, directly or indirectly, and shall cause its and its Subsidiaries' officers, directors, employees, subsidiaries, agents or advisors or other representatives not to, directly or indirectly: (i) solicit, encourage, initiate, participate or knowingly facilitate (including by way of furnishing information) in any offernegotiations, proposal discussions or inquiry relating inquiries with respect to any Competing Transaction (as defined below), or continue any such negotiations or discussions which may have been initiated prior to the date hereof with any party other than BBC or (ii) in connection with, or in contemplation of, any Competing Transaction or any potential Competing Transaction, except as required by Law, disclose any information to any person concerning the business and properties of Community Bankshares, afford to any person (other than BBC and its advisors and agents) access to the properties, books or records of Community Bankshares or any of its Subsidiaries or otherwise assist or encourage any person in connection with any of the foregoing; provided, however, that nothing in this Section 6.6 shall prohibit the Board of Directors of Community Bankshares from furnishing information to, or entering into discussions or negotiations with, any person in connection with an unsolicited bona fide Competing Transaction received after the date of this Agreement by such person if Community Bankshares' Board of Directors determines in good faith: (i) after consulting with its independent financial advisors, that such person is reasonably likely to be capable of completing such Competing Transaction, taking into account the legal, financial, regulatory and other aspects of such Competing Transaction, and the person making such Competing Transaction, and that such Competing Transaction could reasonably be expected to result in a Superior Proposal (as defined below) and (ii) if, and only to the extent that: (a) the Board of Directors of Community Bankshares, after consultation with outside legal counsel, believes that such action is required for such Board of Directors to comply with its duties to its shareholders imposed by Delaware Law and (b) prior to furnishing such information to, or entering into discussions or negotiations with, such person, Community Bankshares obtains from such person an executed confidentiality and standstill agreement on terms no less favorable to Community Bankshares, as the case may be, than those contained in that certain Confidentiality Agreement between Community Bankshares and BBC dated July 11, 2001, unless the Board of Directors of Community Bankshares, after consultation with outside legal counsel, believes that such requirement would violate its duties to its shareholders imposed by Delaware Law. Community Bankshares shall notify BBC promptly if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made and provide BBC in reasonable detail the material terms of any proposal and shall keep BBC promptly advised of the status of any such proposal. Each party hereto agrees not to release any third party indication from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) A "Competing Transaction" means any of interest inthe following involving Community Bankshares, as the case may be (other than the Merger contemplated by this Agreement): (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution combination or other similar transaction involving a party Community Bankshares or its Subsidiaries whose assetsCommunity Savings, individually (ii) any sale, lease, exchange, transfer or in the aggregate, constitute 25% other disposition of 50 percent or more of the consolidated assets of Community Bankshares or Community Savings, (iii) a Tender Offer or Exchange Offer (as such terms are defined in Section 12.1(d) hereof) for 20 percent or more of the partyoutstanding voting securities of Community Bankshares, or (iv) any solicitation (made in accordance with Rule 14a-3 under the Exchange Act) in opposition to the approval of the Merger by the shareholders of Community Bankshares.
Appears in 1 contract
Acquisition Proposals. (a) Each party Strata agrees that neither it will notnor any of its officers, trustees, or directors shall, and will that Strata shall use its reasonable best efforts to cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly induce, encourage or knowingly otherwise facilitate (including, without limitation, by way of furnishing information or data) any inquiries regarding, or proposals with respect the making of, any proposal or offer which constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (other than by Middlesex).
(b) Strata agrees that neither it nor any Acquisition Proposalof its officers, (ii) directors or trustees shall, and that Strata shall use its reasonable best efforts to cause its Representatives not to, directly or indirectly, 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 provide, or otherwise afford access to, any Person (iv) unless this Agreement has been terminated in accordance with its termsother than Middlesex), approve any information or data relating to Strata or otherwise relating to an Acquisition Proposal, or enter into any term sheetdefinitive agreement, arrangement or understanding (including, without limitation, any agreement in principle, letter of intent, commitment, memorandum of understandingunderstanding or similar arrangement) with respect to an Acquisition Proposal or requiring it (or conditioned upon requiring it) to abandon, agreement in principleterminate or fail to consummate the MHC Merger, acquisition agreement, merger agreement the Mid-Tier Merger or any other agreement (whether written transaction contemplated by this Agreement or oral, binding approve or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any recommend an Acquisition Proposal. Notwithstanding ; provided, however, that nothing contained in this Agreement shall prevent Service or the foregoingService Board, in the event that after between the date of this Agreement and prior to the receipt date of the Requisite Sterling VoteService Meeting, from (i) providing information in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, response to a party receives request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 Service Board of Directors of receives from the Person so requesting 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 an executed confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement entered into on October 8, 2008 by MSB and KBW as agent for Service (the “Confidentiality Agreement”); (ii) engaging in any negotiations or discussions with any Person that has made an unsolicited bona fide written Acquisition Proposal; or (iii) recommending such an Acquisition Proposal to the shareholders of Service, if and only to the extent that, (x) in each such case referred to in clause (i), (ii) or (iii) above, Service determines in good faith (after consultation with outside legal counsel) and by the requisite vote of the Service Board that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law, (y) in each such case referred to in clause (i) or (ii) above, the Service Board also determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal, and (z) in the case referred to in clause (iii) above, (A) the Service Board also determines in good faith (after consultation with its financial advisor) and by the requisite vote of the Service Board that such Acquisition Proposal is a Superior Proposal, (B) the Service Board has given Middlesex three (3) Business Days’ prior written notice of its intention to recommend such Acquisition Proposal to the shareholders of Service (which notice shall specify the material terms of the applicable Acquisition Proposal), (C) the Service Board has considered any changes to the Aggregate Merger Consideration, Per Share Merger Consideration or to this Agreement (if any) proposed by Middlesex, and (D) the Service Board has determined in good faith and by the requisite vote of the Service Board, after consultation with Service’s outside legal counsel and after consultation with its financial advisor, that such unsolicited Acquisition Proposal remains a Superior Proposal even after the changes proposed by Middlesex. During any such three (3) Business Day period, Middlesex shall be entitled to deliver to Strata one or more counterproposals to such Acquisition Proposal. Strata shall promptly provide to Middlesex any non-public information regarding Strata provided to any other Person which was not previously provided to Middlesex, such additional information to be provided no later than the date of provision of such information to such other party.
(c) Except as otherwise provided in Section 7.7(b), neither the Service Board nor any committee thereof shall (i) withdraw, qualify or modify, or propose to withdraw, qualify or modify, in a manner adverse to Middlesex in connection with the transactions contemplated by this Agreement (including the MHC Merger and the Mid-Tier Merger), the Service Board Recommendation, or make any statement, filing or release, in connection with the Service Meeting or otherwise, inconsistent with the Service Board Recommendation (it being understood that taking a neutral position or no position with respect to an Acquisition Proposal shall be considered an adverse modification of the Service Board Recommendation); (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iii) enter into (or cause Strata to enter into) any letter of intent, agreement in principle, merger agreement, acquisition agreement or other agreement (A) related to any Change in Control Transaction (other than a confidentiality agreement entered into in accordance with the provisions of Section 7.7(b)) or (B) requiring Strata to abandon, terminate or fail to consummate the MHC Merger and the Mid-Tier Merger or any other transaction contemplated by this Agreement.
(d) Upon execution of this Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willStrata shall, and will shall use its reasonable best efforts to cause each of its Subsidiaries and Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions discussions, negotiations or negotiations communications with any Persons conducted before heretofore with respect to any existing or potential Acquisition Proposals and shall request the return or destruction of all confidential information provided to any such parties prior to the date of this Agreement. Any violation of the foregoing restrictions by any of the Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Strata or otherwise, shall be deemed to be a breach of this Agreement with any person other than by Strata.
(e) From and after the other party with respect to any Acquisition Proposal. Each party will execution of this Agreement, Strata agrees that it shall notify Middlesex promptly (and in any event within twenty-four (24) hours) advise the other party following receipt of if any Acquisition Proposal inquiries, proposals or offers are received by, any information is requested from, or any inquiry which could reasonably discussions or negotiations are sought to be expected to lead initiated or continued with, Strata or any of Strata’s Representatives, in each case relating to an Acquisition Proposal, and such notice shall indicate the substance thereof (including name of the Person initiating such discussions or negotiations or making such proposal, offer or information request and the material terms and conditions of and any proposals or offers (and, in the identity case of written materials, providing copies of such materials (including e-mails or other electronic communications)) unless (i) such materials constitute confidential information of the person party making such inquiry offer or Acquisition Proposal)proposal under an effective confidentiality agreement, will provide (ii) disclosure of such materials jeopardizes the other party with an unredacted copy attorney-client privilege or (iii) disclosure of such materials may reasonably be deemed to contravene any such Acquisition Proposal and any draft agreementslaw, proposals rule, regulation, order, judgment or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposaldecree. Strata agrees that it shall keep Middlesex informed, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments amendment or modification to such proposal, offer or revisions of the terms of such inquiry or Acquisition Proposal. Each party request).
(f) Service shall use its reasonable best efforts to enforce (and shall not waive any existing confidentiality provisions of) any confidentiality, standstill or standstill agreements to which similar agreement entered into by it or on its behalf by KBW or otherwise relating to a potential Acquisition Proposal.
(g) Nothing contained in this Agreement shall prevent Service or the Service Board from complying with its disclosure obligations under Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal (it being understood that if any such disclosure constitutes or contemplates a withholding, withdrawing, modification, amendment or qualification to the Service Board Recommendation that is adverse to Middlesex or recommendation of an Acquisition Proposal, Service shall comply with all provisions of this Section 7.7).
(h) A “Superior Proposal” shall be a bona fide Acquisition Proposal (on its Subsidiaries most recently amended or modified terms, if amended or modified) made by a third party to enter into a Change in Control Transaction on terms that the Service Board determines in its good faith judgment, after consultation with and having considered the advice of outside legal counsel and a nationally recognized, independent financial advisor (i) would, if consummated, result in the acquisition of all, but not less than all, of the issued and outstanding shares of Strata or all, or substantially all, of the assets of Strata on a consolidated basis; (ii) would result in a transaction that (A) involves consideration to the holders of the shares of Service Common Stock that is more favorable, from a party in accordance with financial point of view, than the terms thereof. As used in consideration to be paid to the shareholders of Service pursuant to this Agreement, “Acquisition Proposal” meansconsidering, among other things, the nature of the consideration being offered and any material regulatory approvals or other risks associated with respect the timing of the proposed transaction beyond or in addition to Webster or Sterlingthose specifically contemplated hereby, as applicableand any requirement to obtain additional financing and (B) is, in light of the other terms of such proposal, more favorable to the shareholders of Service than the MHC Merger and the Mid-Tier Merger and the other transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party ; and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a mergeris reasonably likely to be completed on the terms proposed, consolidationin each case taking into account all legal, share exchangefinancial, business combination, reorganization, recapitalization, liquidation, dissolution or regulatory and other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more aspects of the consolidated assets of the partyproposal.
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that it will not, and will cause each of its Subsidiaries and its and their respective directors, officers, directors, employees, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto, 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided, that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Company receives an unsolicited bona fide written Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Holding Shareholder Approval, and Holding’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, such party the Company may, and may permit its Subsidiaries officers and its 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 to the person making the Acquisition Proposal if extent that the Board of Directors of such party Holding concludes in good faith (after receiving and based upon the written advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would or would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable lawLaw; providedprovided further, that, that prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and The Company will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than the other party Seacoast with respect to any Acquisition Proposal. Each party will The Company shall promptly (and in any event within twenty-four (24) hourstwo Business Days) advise Seacoast following the other party following receipt or notice of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Seacoast apprised of any related developments, discussions and negotiations on a current basis. The Company agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by the Company.
(b) Notwithstanding the foregoing, including any amendments to or revisions if Holding’s Board of Directors concludes in good faith (and based up the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any written advice of its Subsidiaries is outside counsel and after consultation with its financial advisor) that an Acquisition Proposal constitutes a Superior Proposal and that failure to accept such Superior Proposal would result in a violation of its fiduciary obligations to shareholders of Holding under applicable Laws, the Holding Board of Directors may at any time prior to the Holding Shareholder Approval (i) withdraw or modify (a “Change in Recommendation”) the Holding Board of Directors’ recommendation that shareholders of Holding approve this Agreement or make or cause to be made any third party in accordance with or public communication proposing or announcing an intention to withdraw or modify the terms thereof. As used in Holding Board of Directors recommendation for Holding shareholder approval of this Agreement, “Acquisition and (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal” means; provided, however, that the Board of Directors of Holding may not make a Change in Recommendation, and terminate this Agreement, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, an Acquisition Proposal unless (i) Holding shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party respect and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) (A) the Board of Directors of Holding determines in good faith (after consultation with counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) Holding has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer such Superior Proposal (including the identity of the Person making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, Holding has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more Superior Proposal. In the event of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in material change to the aggregate, constitute 25% or more terms of the consolidated assets such Superior Proposal, Holding shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and Holding shall be required to comply with its obligations under this Section 4.12 with respect to such new written notice. Holding will advise SBC in writing within twenty-four (24) hours following the receipt of any Acquisition Proposal and the substance thereof (including the identity of the partyPerson making such Acquisition Proposal) and will keep SBC apprised of any related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in including the aggregate, constitute 25% or more terms and conditions of the consolidated assets of the partyAcquisition Proposal) on a current basis.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Each party of the Wherify Entities and Lightyear Companies agrees that it will shall not, directly or indirectly, and will cause each of shall instruct its Subsidiaries and its and their respective officers, directors, employees, agents, agents or advisors and or other representatives (collectively, “Representatives”) or consultants not to, directly or indirectly, (i) initiateuntil the Closing or the termination of this Agreement, solicit, knowingly encourage solicit or knowingly facilitate inquiries initiate any proposals or proposals with respect to any Acquisition Proposal, (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, offers from any person relating to any Acquisition acquisition, purchase or sale of all or a material amount of the assets of, or any securities of, or any merger, consolidation or business combination with, the Wherify Entities or Lightyear Companies. Notwithstanding the foregoing, each of the Wherify Entities and Lightyear Companies, to the extent required by the fiduciary obligations of its Board of Directors and Managers, respectively, as determined in good faith by such Board of Directors and Managers, respectively, after consultation with outside counsel, in response to a Qualifying Proposal that did not result from a breach by such entity of this Section 10.1, (i) furnish information with respect to it, to the person making such Qualifying Proposal and its representatives pursuant to a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (ii) participate in discussions or negotiations with such person and its representatives regarding such Qualifying Proposal.
(ivb) unless None of the Board of Directors of Wherify Entities or Lightyear Companies, nor any committee thereof, shall, except as set forth in this Section 10.1:
(i) shall withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the other Party the approval or recommendation by such Board of Directors or any committee thereof of this Agreement has been terminated in accordance with its terms, approve or the Merger.
(ii) cause or permit any Lightyear Company or Wherify Entity to enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written an “Alternative Acquisition Agreement”) constituting or oral, binding or nonbinding) relating to any Acquisition Proposal (other than a confidentiality agreement referred to and in Section 10.1(a) entered into in accordance with this the circumstances referred to in Section 6.1310.1(a)); or
(iii) in connection with adopt, approve or relating recommend, or propose to adopt, approve or recommend, any Acquisition Proposal. .
(c) Notwithstanding the foregoing:
(i) the Board of Directors of Wherify may, in response to a Superior Proposal that did not result from a breach by Wherify of this Section 10.1, withdraw or modify the event that after recommendation by the date Board of Directors of Wherify or any committee thereof of this Agreement and prior the Merger, if the Board of Directors determines in good faith (after consultation with outside counsel) that such actions are required by its fiduciary obligations, but only after the third business day following receipt by Lightyear of written notice advising it that the Board of Directors of Wherify desires to withdraw or modify the recommendation due to the receipt existence of a Superior Proposal, specifying the Requisite Sterling Votematerial terms and conditions of such Superior Proposal and identifying the entity making such Superior Proposal. Nothing in this Section 10.1 (other than Section 10.1(f)) shall be deemed to limit Wherify’s obligation to call, give notice of, convene and hold the Wherify stockholders meeting, regardless of whether the Board of Directors of Wherify has withdrawn or modified its recommendation of this Agreement and the Merger; and
(ii) the Managers of Lightyear may, in response to a Superior Proposal that did not result from a breach by Lightyear of this Section 10.1, withdraw or modify the case recommendation by the Board of SterlingDirectors of Lightyear or any committee thereof of this Agreement and the Merger, but only after the third business day following receipt by Wherify of written notice advising it that the Board of Directors of Lightyear desires to withdraw or modify the recommendation due to the existence of a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the entity making such Superior Proposal. Nothing in this Section 10.1 shall be deemed to limit Lightyear’s obligation to call, give notice of, convene and hold the Lightyear Members meeting, regardless of whether the Managers of Lightyear has withdrawn or modified its recommendation of this Agreement and the Merger.
(d) In the event any Wherify Entity or Lightyear Company or any of its respective officers, directors, investment bankers, financial advisors or attorneys attains knowledge of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or the Requisite Webster Voteof any inquiry with respect to, in the case of Websteror that could reasonably be expected to lead to, a party receives an unsolicited bona fide written any Acquisition Proposal, such party mayshall promptly advise the other party orally, with written confirmation to follow promptly (and in any event within 24 hours), of the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the Person making any such Acquisition Proposal or inquiry. Such party shall not provide any information to or participate in discussions or negotiations with the Person making any Qualifying Proposal until three business days after the date the written notice required above is received. Wherify or Lightyear, as applicable, shall (i) keep the other party fully informed, on a prompt basis (and in any event within 24 hours), of the status and any material change to the terms of any such Acquisition Proposal or inquiry, (ii) provide to the other party as promptly as practicable after receipt or delivery thereof copies of all correspondence and other written material sent or provided from any third party describing the terms of any Acquisition Proposal, and may permit (iii) if a counterproposal is timely made, consider and cause its Subsidiaries financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Qualifying Proposal, the disclosing party shall furnish a copy of such information to the other party hereto.
(e) Nothing contained in this Section 10.1 shall be deemed to prohibit Wherify from taking and disclosing to its Subsidiaries’ Representatives tostockholders a position with respect to a tender offer contemplated by Rule 14e-2(a) promulgated under the Exchange Act if, 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 good faith judgment of the Board of Directors of such party concludes in good faith (Wherify, after receiving the advice of its consultation with outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions so disclose would be more likely than not to result in a violation of inconsistent with its fiduciary duties obligations under applicable law; provided, however, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentenceexcept as set forth in Section 10.1(b), such party in no event shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date Board of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt Directors of any Acquisition Proposal Wherify or any inquiry which could reasonably be expected committee thereof withdraw or modify or propose to lead withdraw or modify, in a manner adverse to an Acquisition ProposalLightyear, and the substance thereof (including approval or recommendation by the terms and conditions of and the identity Wherify or such committee of the person making such inquiry Merger or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (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, (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, with any person relating to any Acquisition Proposal (other than the parties to this Agreement and their Representatives) 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 6.13) 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 Sterling BHRB Vote, in the case of SterlingBHRB, or the Requisite Webster LNKB Vote, in the case of WebsterLNKB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its 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 counselcounsel and, 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.,
Appears in 1 contract
Sources: Merger Agreement (LINKBANCORP, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) 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 Sterling Viking Vote, in the case of SterlingViking, or the Requisite Webster Camber Vote, in the case of WebsterCamber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Viking or Camber, as applicable, with respect to any Acquisition Proposal, and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement. Agreement and Plan of Merger
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Viking or SterlingCamber, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to, and will cause its and their respective officers, directors, directors and employees, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Umpqua Vote, in the case of SterlingUmpqua, or the Requisite Webster Columbia Vote, in the case of WebsterColumbia, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.amendments
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will FPFI shall not, and will cause each nor shall it permit any of its Subsidiaries and to, nor shall it or its and Subsidiaries authorize or permit any of their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or knowingly facilitate inquiries or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent 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 agreement related 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 (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt FPFI Shareholders’ Meeting, and without any breach of the Requisite Sterling Voteterms of this Section 7.5(a), in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party FPFI receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the FPFI Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and FPFI may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, (x) 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 including non-public information) with respect to financial mattersFPFI to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Execution Version Confidentiality Agreement between Progress and FPFI dated August 15, its financial advisors2016, and (y) participate in negotiations with such Person regarding such Acquisition Proposal, if the FPFI Board determines in good faith, after consultation with counsel, that failure to take such actions do so would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw.
(b) Except as set forth in Section 10.1(k) below, neither the FPFI Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Progress, the approval or recommendation by the FPFI Board, or such committee, of the Merger or this Agreement; provided(ii) approve or recommend, thator propose to approve or recommend, prior any Acquisition Proposal; or (iii) authorize or permit FPFI or any of its Subsidiaries to furnishing enter into 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 Agreement.
(c) FPFI agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause FPFI shall direct its Subsidiaries and Representatives its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Persons with respect to any Acquisition Proposal. Each party FPFI agrees that it will notify Progress promptly (within twenty-four (24) but no later than 24 hours) advise the other party following receipt of if, to FPFI’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, FPFI, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposaloffers, and will thereafter FPFI shall keep the other party apprised of any related developmentsProgress informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. FPFI also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySubsidiaries.
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) Each party agrees that it will PBF shall not, and will cause each nor shall it permit any of its Subsidiaries and to, nor shall it or its and Subsidiaries authorize or permit any of their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or knowingly facilitate inquiries or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent 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 agreement related 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 (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt PBF Stockholders’ Meeting, and without any breach of the Requisite Sterling Voteterms of this Section 7.6(a), in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party PBF receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the PBF Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and PBF may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, (x) 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 including non-public information) with respect to financial mattersPBF to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between ANB and PBF, its financial advisorsand (y) participate in negotiations with such Person regarding such Acquisition Proposal, if the PBF Board determines in good faith, after consultation with counsel, that failure to take such actions do so would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw.
(b) Except as set forth in Section 10.1(k), neither the PBF Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to ANB, the approval or recommendation by the PBF Board or such committee of the Merger or this Agreement; provided(ii) approve or recommend, thator propose to approve or recommend, prior any Acquisition Proposal; or (iii) authorize or permit PBF or any of its Subsidiaries to furnishing enter into 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 Agreement.
(c) PBF agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause PBF shall direct its Subsidiaries and Representatives its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Persons with respect to any Acquisition Proposal. Each party PBF agrees that it will notify ANB promptly (within twenty-four (24) but no later than 24 hours) advise the other party following receipt of if, to PBF’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, PBF, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposaloffers, and will thereafter PBF shall keep the other party apprised of any related developmentsANB informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. PBF also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySubsidiaries.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will The Seller Parties shall not, and will shall cause each of its Subsidiaries and its and their respective officersSubsidiaries not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall direct their respective Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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 Person relating to any Acquisition Proposal (except to notify a Person that has made or, to the knowledge of such party, is making any inquiries with respect to, or (ivis considering making, an Acquisition Proposal, of the existence of the provisions of this Section 5.4) or, 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, asset purchase agreement, merger agreement or other similar agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.135.4) in connection with or relating to any Acquisition ProposalProposal (any such agreement, an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives Seller Parties receive an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 5.4(a), such party the Seller Parties may, and may permit its their respective Subsidiaries and its their and its their 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 Person making the Acquisition Proposal if the Board of Directors of such party concludes Seller determines 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 inconsistent with its fiduciary duties under applicable lawLaw; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, the Seller Parties shall have provided such party information to Purchaser and shall have entered into a confidentiality agreement with the person Person making such Acquisition Proposal on terms no less favorable to it Seller Bank than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement Acceptable Confidentiality Agreement shall not provide such person Person with any exclusive right to negotiate with such partythe Seller Parties. Each party The Seller Parties will, and will cause its Subsidiaries and direct their respective Representatives to, immediately cease and cause to be terminated any activities, discussions discussions, or negotiations conducted before the date of this Agreement with any person Person other than the other party Purchaser with respect to any Acquisition Proposal. Each party The Seller Parties will promptly (within twenty-four one (241) hoursBusiness Day) (i) advise the other party Purchaser following receipt of any Acquisition Proposal or any inquiry which could Seller determines is reasonably be expected likely to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will ) and provide the other party Purchaser with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry Acquisition Proposal or Acquisition Proposalinquiry, and will (ii) keep the other party Purchaser 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 Acquisition Proposal. Each party The Seller Parties shall use its their reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it they or any of its their respective Subsidiaries is a party in accordance with the terms thereof. .
(b) As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicableshall mean, other than the transactions contemplated by this Agreement, any written offer, proposal or inquiry relating to, or any third written third-party indication of interest in, (i) any acquisition or purchase, direct or indirectindirect (including by merger, tender or exchange offer, purchase and sale agreement or otherwise), of twenty-five percent (25% %) or more of the consolidated assets or liabilities of a party and its Subsidiaries Seller Parties or twenty-five percent (25% %) or more of any class of equity or voting securities of a party either Seller Party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyeither Seller Party.
Appears in 1 contract
Acquisition Proposals. (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 inquiries or proposals with respect to any Acquisition Proposal, (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 (other than the parties to this Agreement and their Representatives) 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 6.136.14) 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 Sterling Partners Vote, in the case of SterlingPartners, or the Requisite Webster LINK Vote, in the case of WebsterLINK, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.14, such party may, and may permit its Subsidiaries and its 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 but only to the extent that, prior to doing so, 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 outside financial advisors) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) 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 provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to (x) enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofthereof and (y) within five (5) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than the parties to this Agreement and their Representatives in their capacity as such) pursuant to any such agreement. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster LINK or SterlingPartners, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party. As used in this Agreement, “Superior Proposal” means, with respect to LINK or Partners, as applicable, any unsolicited bona fide written offer or proposal made by a third party to consummate an Acquisition Proposal that a party’s Board of Directors determines in good faith (after receiving the advice of its outside counsel and, with respect to financial matters, its outside financial advisors) (x) would, if consummated, result in the acquisition of all, but not less than all, of the issued and outstanding shares of such party’s common stock or all, or substantially all, of the assets of such party; (y) would result in a transaction that (i) involves consideration to the holders of the shares of such party’s common stock that is, after accounting for payment of the Termination Fee that may be required hereunder, more favorable, from a financial point of view, than the consideration to be paid to the holders of shares of such party’s common stock pursuant to this Agreement, considering, among other things, the nature of the consideration being offered, and any material regulatory approvals or other risks associated with the timing of the proposed transaction beyond, or in addition to, those specifically contemplated hereby, and which proposal is not conditioned upon obtaining financing and (ii) is, in light of the other terms of such proposal, more favorable to the stockholders of such party than the Merger and the other transactions contemplated by this Agreement; and (z) is reasonably likely to be completed on the terms proposed, in each case, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Partners Bancorp)
Acquisition Proposals. (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, (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, 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 6.13) 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 Sterling FIBK Vote, in the case or FIBK, or the Requisite GWB Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of WebsterGWB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party GWB or FIBK, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster FIBK or SterlingGWB, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notThe Capstone Parties shall, and will shall direct and use their reasonable best efforts to cause each of its their Subsidiaries and its their and their respective officersSubsidiaries’ Affiliates, directors, officers, employees, agents, advisors and representatives (collectivelyincluding without limitation any investment banker, “Representatives”) not tofinancial advisor, directly or indirectlyattorney, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toaccountant, or have other representative retained by the Capstone Parties or participate in any discussions with, any person relating to any Acquisition Proposal or (ivof their Subsidiaries) 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any existing activities, discussions discussions, or negotiations conducted before with any Person other than the SmartFinancial Parties with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use their reasonable best efforts to enforce, and will direct and use their reasonable best efforts to cause their Subsidiaries to use their reasonable best efforts to enforce, any confidentiality, nondisclosure, or similar agreement relating to any Acquisition Proposal, including by requesting any other party or parties thereto to promptly return or destroy any confidential information previously furnished by or on behalf of the Capstone Parties or any of its Subsidiaries thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction.
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Capstone Parties shall not, and shall direct and cause their Subsidiaries and their and their Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any person investment banker, financial advisor, attorney, accountant, or other representative retained by the Capstone Parties or any of their Subsidiaries) not to, directly or indirectly through another Person, (i) solicit, initiate, or encourage (including by way of furnishing information or assistance), or take any other action to facilitate or that could result in, any inquiries or discussions regarding, or the making of any proposal or offer that constitutes or could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Capstone Parties or any of their Subsidiaries to any Person other than the other party SmartFinancial Parties relating to or in connection with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry or indication of interest that could be expected to lead to an Acquisition Proposal; (iii) continue or participate in any discussions or negotiations, or otherwise communicate in any way with any Person other than the SmartFinancial Parties, regarding any Acquisition Proposal; (iv) approve, endorse, or recommend, or execute, enter into, or consummate, any indication of interest, letter of intent, or other Contract relating to any Acquisition Proposal or requiring the Capstone Parties to abandon, terminate, or fail to consummate the transactions contemplated by this Agreement, or propose to do any of the foregoing; or (v) make or authorize any statement, recommendation, or solicitation in support of any Acquisition Proposal; provided, however, that prior to the date of the Bancshares Meeting, if the Bancshares board of directors determines in good faith, after consultation with its outside legal and financial advisors, that the failure to do so would cause the Bancshares board of directors to breach its fiduciary duties under applicable Law, the Capstone Parties may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 7.1 that the Bancshares board of directors determines in good faith constitutes a Superior Proposal, and subject to providing 48 hours prior written notice of their decision to take such action to the SmartFinancial Parties and identifying the Person making the Superior Proposal and all of the material terms and conditions of such Superior Proposal and compliance with Section 7.1(c), (A) furnish information with respect to the Capstone Parties and their Subsidiaries to any Person making such Superior Proposal pursuant to a customary confidentiality agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement (which confidentiality agreement shall not provide such Person the exclusive right to negotiate with the Capstone Parties) and (B) participate in discussions or negotiations with such Person regarding such Superior Proposal.
(c) In addition to the obligations of the Capstone Parties set forth above, the Capstone Parties shall promptly (within not more than 24 hours) advise the SmartFinancial Parties orally and in writing of their receipt of any Acquisition Proposal, or any request for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal, and shall keep the substance thereof (SmartFinancial Parties informed, on a current basis, of the continuing status thereof, including the terms and conditions thereof and any changes thereto, and shall provide to the SmartFinancial Parties any written materials received by the Capstone Parties or any of and their Subsidiaries in connection therewith. Additionally, the identity Capstone Parties shall contemporaneously provide or make available to the SmartFinancial Parties all materials provided or made available to any third party pursuant to this Section 7.1 which have not been previously provided or made available to the SmartFinancial Parties.
(d) For the avoidance of doubt, the person making such inquiry Capstone Parties expressly agree that any breach or Acquisition Proposal), will provide the other party with an unredacted copy violation of any such Acquisition Proposal and provision of this Section 7.1 by any draft agreementsof their Subsidiaries or by any of their or their Subsidiaries’ Affiliates, proposals directors, officers, employees, agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other materials received from or on behalf of the person making representative retained by such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it Party or any of its Subsidiaries is Subsidiaries) shall be deemed a party in accordance with breach or violation of this Section 7.1 by the terms thereof. As used Capstone Parties.
(e) Nothing contained in this Agreement, “Acquisition Proposal” means, with respect to Webster Section 7.1 shall prevent Bancshares or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal Capstone or inquiry relating to, or any third party indication their respective boards of interest in, directors from (i) any acquisition taking the actions permitted by Section 7.7(b) of this Agreement or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) informing any tender offer (including a self-tender offer) or exchange offer thatPerson who submits an unsolicited, if consummated, would result in such third party beneficially owning 25% or more bona fide Acquisition Proposal of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partytheir obligations pursuant to this Section 7.1.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will From the date hereof until the termination of this Agreement, Target and its Subsidiaries shall not, and will shall cause each of its Subsidiaries and its and their respective officers, directors, employees, agentsinvestment bankers, advisors and representatives (collectively, “Representatives”) attorneys or other agents not to, directly or indirectly, (i) initiate, take any action to solicit, knowingly initiate or encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Target Acquisition Proposal or any inquiry which inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to an a Target Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) enter into any tender offer (including agreement with respect to a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partyTarget Acquisition Proposal, or (iii) a mergerengage or participate in discussions or negotiations with, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party disclose any nonpublic information relating to Target or its Subsidiaries whose assetsSubsidiaries, individually respectively, or furnish to any Person any information with respect to, or otherwise cooperate in any way with a Target Acquisition Proposal. Nothing contained in this Section 7.2(a) shall prohibit Target and its Board of Directors from (x) taking and disclosing a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) under the Exchange Act, (y) waiving, or agreeing to waive, any provision of any stand-still or similar agreement in effect on the date hereof to allow a Person to make a Target Acquisition Proposal, so long as simultaneously with such waiver, such parties become subject to stand-still provisions at least as restrictive as those in the aggregateConfidentiality Agreement, constitute 25% or more (z) prior to obtaining the Target Stockholders’ Approval, furnishing information, including nonpublic information to, or entering into negotiations with, any Person that has submitted an unsolicited bona fide written Target Acquisition Proposal made not in violation of this Agreement or any standstill agreement if, and only to the consolidated assets extent that (with respect to this Section 7.2(a) only):
(i) such unsolicited bona fide written Target Acquisition Proposal is made by a third party that Target’s Board of Directors determines in good faith has the party.good faith intent to proceed with negotiations to consider, and the financial and legal capability to consummate, such Target Acquisition Proposal,
(ii) Target’s Board of Directors, after duly consulting with Target’s outside legal counsel, determines in good faith that such action is necessary for Target’s Board of Directors to comply with its fiduciary duties imposed by applicable law,
(iii) contemporaneously with furnishing such information to, or entering into discussions with, such Person, Target enters into a confidentiality agreement with such Person on terms no less restrictive than those in the Confidentiality Agreement,
(iv) contemporaneously with furnishing such information to, or entering into discussions or negotiations with, such Person, Target provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person,
Appears in 1 contract
Sources: Merger Agreement (Stone Energy Corp)
Acquisition Proposals. (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, (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, with any person relating to any Acquisition Proposal (other than the parties to this Agreement and their Representatives) 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 6.13) 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 Sterling BHRB Vote, in the case of SterlingBHRB, or the Requisite Webster LNKB Vote, in the case of WebsterLNKB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its 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 counselcounsel and, 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party LNKB or BHRB, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster BHRB or SterlingLNKB, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, twenty-five percent (25%) or more of any class of equity or voting securities of a party or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (Burke & Herbert Financial Services Corp.)
Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, Glimcher agrees that it will shall not, and will shall cause each of its Subsidiaries the other Glimcher Entities and its and their respective officers, directors, employees, agents, advisors officers and representatives (collectively, “Representatives”) directors and direct its other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate inquiries any inquiry, discussion or proposals with respect offer that constitutes or could reasonably be expected to any lead to an Acquisition Proposal, (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 or negotiations regarding, or furnish to any Third Party any non-public information in connection with, or knowingly facilitate any person relating to Third Party in making any Acquisition Proposal or (iviii) 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, share purchase agreement, asset purchase agreement, share exchange agreement or other option agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”).
(b) Notwithstanding Section 6.5(a) or anything else in this Agreement to the contrary, at any Acquisition Proposal. Notwithstanding the foregoingtime prior to obtaining Glimcher Shareholder Approval, Glimcher or any Glimcher Entity may, directly or indirectly through any Representative, in the event that after the date of this Agreement and prior response to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition ProposalProposal by a Third Party made after the date of this Agreement, (i) furnish non-public information to such party mayThird Party making an Acquisition Proposal and its Representatives (provided, however, that (A) prior to so furnishing such information, Glimcher receives from the Third Party an executed Acceptable Confidentiality Agreement, and may permit its Subsidiaries (B) any non-public information concerning the Glimcher Entities that is provided to such Third Party shall, to the extent not previously provided to the WPG Parties, be provided to the WPG Parties prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party and its Representatives with respect to the Acquisition Proposal if, in the case of each of clauses (i) and (ii), the Glimcher Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or could reasonably be likely to result in, a Superior Proposal.
(c) Glimcher shall notify WPG promptly (but in no event later than twenty-four (24) hours) after receipt by an officer of Glimcher or trustee on the Glimcher Board of any Acquisition Proposal or any inquiry from any Person seeking to have discussions or negotiations with any Glimcher Entity or any of its Subsidiaries’ Representatives torelating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with shall indicate the person identity of the Third Party making the Acquisition Proposal or such inquiry and the material terms and conditions of any such Acquisition Proposals or inquiries (including a copy thereof if in writing and any drafts and final versions of agreements related thereto (which documentation may be redacted to the Board extent necessary to protect confidential information of Directors the business or operations 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 Person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement or inquiry)). Glimcher shall not provide such person with any exclusive right to negotiate with such party. Each party willalso promptly, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated in any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt , notify WPG orally and in writing, if any Glimcher Entity or any of its Representatives enters into discussions or negotiations concerning any Acquisition Proposal or provides non-public information or data to any inquiry Person in accordance with Section 6.5(b) and keep WPG reasonably informed of the status and material terms of any such Acquisition Proposals on a reasonably current basis, including by providing a copy of all drafts and final versions of agreements relating thereto (which may be redacted to the extent necessary to protect confidential information of the business or operations of the Person making such Acquisition Proposal).
(d) Except as permitted by this Section 6.5(d), neither the Glimcher Board nor any committee thereof shall (i) withhold, withdraw or modify (or publicly propose to withhold, withdraw or modify), in a manner adverse to any WPG Party, the Glimcher Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Glimcher Recommendation in the Proxy Statement, (iv) fail to publicly recommend against any Acquisition Proposal, or fail to publicly reaffirm the Glimcher Recommendation, in each case, within ten (10) Business Days after the written request of WPG following an Acquisition Proposal that has been publicly announced (or such fewer number of days as remains prior to the Glimcher Shareholder Meeting, as it may be adjourned or postponed) (any of the actions described in clauses (i), (ii), (iii) or (iv) of this Section 6.5(d), an “Adverse Recommendation Change”). Notwithstanding anything to the contrary set forth in this Agreement (A) at any time prior to obtaining the Glimcher Shareholder Approval, if the Glimcher Board (x) has received an unsolicited bona fide Acquisition Proposal that was not solicited in breach of this Section 6.5 and that, in the good-faith determination of the Glimcher Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the WPG Parties pursuant to Section 6.5(e) and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action could reasonably be expected to lead be inconsistent with the trustees’ duties under applicable Law, then in such case Glimcher may (i) terminate this Agreement pursuant to Section 8.1(c)(ii) or (ii) make an Adverse Recommendation Change, and, in the case of a termination, Glimcher may immediately prior to or concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; or (B) other than in response to an Acquisition Proposal, if the Glimcher Board determines in good faith, after consultation with outside legal counsel, that failure to take such action could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law, Glimcher may make an Adverse Recommendation Change.
(e) The Glimcher Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.5(d) or terminate this Agreement pursuant to Section 8.1(c)(ii) unless (i) Glimcher has provided a written notice (a “Notice of Adverse Recommendation Change”) to the WPG Parties that the Glimcher Board intends to take such action, specifying in reasonable detail the reasons therefor and, in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), describing the material terms and conditions of, and attaching a complete copy of, the substance thereof Superior Proposal that is the basis of such action (including it being understood that such material terms shall include the identity of the Third Party, but which documentation may be redacted to the extent necessary to protect confidential information of the business or operations of the Person making such Superior Proposal), (ii) during the 72-hour period following the WPG Parties’ receipt of the Notice of Adverse Recommendation Change (the “Negotiation Period”), Glimcher shall, and shall cause its Representatives to, negotiate with the WPG Parties in good faith (to the extent the WPG Parties request to negotiate) to make such adjustments in the terms and conditions of this Agreement to obviate the need to make such Adverse Recommendation Change or terminate this Agreement, and (iii) following the identity end of such 72-hour period, the person making such inquiry Glimcher Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by the WPG Parties in response to the Notice of Adverse Recommendation Change or Acquisition Proposalotherwise, (x) that in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), will provide the other party with an unredacted copy Superior Proposal giving rise to the Notice of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Adverse Recommendation Change continues to constitute a Superior Proposal, and will keep (y) in the other party apprised case of any related developmentsan Adverse Recommendation Change pursuant to Section 6.5(d)(B), discussions and negotiations on a current basisafter consultation with outside legal counsel, including any amendments that failure to or revisions of take such action could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law. Any material change to the terms of such inquiry Superior Proposal, including any change to the financial terms, shall require a new Notice of Adverse Recommendation Change and the provisions of this Section 6.5(e) shall apply one additional time to such Superior Proposal; provided, however, that in connection with the second Negotiation Period, if any, references to 72-hours above shall be deemed to be references to 48-hours instead. In no event will there be more than two (2) Negotiation Periods and Glimcher will not be required to deliver more than two (2) Notices of Adverse Recommendation Change or to comply with any of the other provisions of this Section 6.5(e) that would have otherwise been applicable had Glimcher delivered additional Notices of Adverse Recommendation Change.
(f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit Glimcher or the Glimcher Board, directly or indirectly through its Representatives, from (i) complying with its disclosure obligations under applicable Law with respect to an Acquisition Proposal, including taking and disclosing to Glimcher’s shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its shareholders if the Glimcher Board has determined, after consultation with outside legal counsel, that the failure to do so could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law or (ii) making a “stop, look and listen” or similar communication to the holders of Glimcher Common Shares of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, the foregoing shall not permit the Glimcher Board to make any Adverse Recommendation Change except as permitted by Section 6.5(d) and Section 6.5(e).
(g) Upon execution of this Agreement, Glimcher shall, and shall cause each of the other Glimcher Entities, and its and their officers and directors and direct its other Representatives to (i) immediately cease any existing discussions, negotiations or communications with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which any Glimcher Entity is a party or of which any Glimcher Entity is a beneficiary. Each party Glimcher shall use its reasonable best efforts to enforce cause all Third Parties who have been furnished confidential information regarding any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party Glimcher Entity in accordance connection with the terms thereof. As used in solicitation of or discussions regarding an Acquisition Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that they are entitled to have such information returned or destroyed).
(h) For purposes of this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.:
Appears in 1 contract
Acquisition Proposals. (a) Each party No Solicitation or Negotiation. The Company agrees that neither it will not, and will cause each nor any of its Subsidiaries nor any of its or its Subsidiaries' officers and directors shall, and that it shall use its reasonable best efforts to instruct and cause its and its and their respective Subsidiaries' directors, officers, directors, employees, agentsinvestment bankers, attorneys, accountants and other advisors and 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, knowingly encourage or knowingly facilitate or encourage, any inquiries or proposals with respect the making of any proposal or offer that constitutes or could reasonably be likely to any lead to an Acquisition Proposal, Proposal (as defined below); or
(ii) engage in, continue 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 otherwise participate in any discussions withor negotiations regarding, or provide any person relating non-public information or data to any Acquisition Proposal Person who has made, or (iv) unless this Agreement has been terminated in accordance with its termsproposes to make, approve or enter into any term sheetotherwise knowingly facilitate, 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 6.13) in connection with or relating to any encourage an Acquisition Proposal. Notwithstanding the foregoing, anything in the event that after the date of this Agreement and to the contrary, prior to the receipt of time, but not after, this Agreement is approved by the Company's shareholders pursuant to the Company Requisite Sterling Vote, the Company may (A) provide information in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, response to a party receives an unsolicited request therefor by a Person who has made a bona fide written Acquisition ProposalProposal that was not initiated, solicited, facilitated or encouraged, in violation of this Section 6.2 or by the Company's Representatives, prior to the time such party mayAcquisition Proposal was first made after the date hereof, if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Non-Disclosure Agreement, dated as of February 16, 2006, (the "Confidentiality Agreement"), by and between Parent and the Company together with a customary standstill agreement on terms no more favorable to such Person than the standstill applicable to Parent except that the term of such standstill agreement may permit its Subsidiaries be shorter than the time of the standstill applicable to Parent (but not less than 9 months) and its other provisions of the standstill may be more favorable to such Person (to the extent customary) in which case the term and its Subsidiaries’ Representatives toother provisions of the standstill applicable to Parent shall, furnish or cause for so long as this Agreement is in effect, automatically be reduced to be furnished confidential as favorable to Parent as such other standstill agreement is to such Person or nonpublic information made more favorable to Parent; or data and participate (B) engage in such discussions or negotiations or discussions with the person making the any Person who has made a bona fide written Acquisition Proposal that was not initiated, solicited, facilitated or encouraged, in violation of this Section 6.2 or by the Company's representatives, prior to the time such Acquisition Proposal was first made after the date hereof, if, in each case referred to in clause (A) or (B) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisers and legal counsel) that such action is necessary in order for the directors of the Company to comply with their fiduciary duties under applicable Law; and in the case referred to in clause (B) above, if the Board of Directors of such party concludes the Company, has determined in good faith (based on all the information then available and after receiving the advice of its outside counsel, and consultation with respect to financial matters, its financial advisors) advisers and legal counsel that failure to take such actions would be more Acquisition Proposal either constitutes a Superior Proposal or is reasonably 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Superior Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Acquisition Proposals. (a) Each party From and after the date hereof --------------------- until the termination of this Agreement, Heritage agrees that neither it will not, and will cause each nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its and their respective officers, directors, Subsidiaries" employees, agentsrepresentatives, advisors and representatives agents or affiliates (collectivelyincluding, “Representatives”without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, solicit or knowingly encourage (including by way of furnishing non- public information or knowingly assistance), or facilitate knowingly, any inquiries or proposals with respect to the making of any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toproposal that constitutes, 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 8.1), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its Subsidiaries to take any such action, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide that it shall notify the other party with an unredacted copy of any such Acquisition Proposal orally (within 1 business day) and any draft agreementsin writing (as promptly as practicable, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal but in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms no event later than 2 calendar days) of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters and, if such inquiry or proposal is in writing, it shall deliver to the other party a party in accordance with the terms thereof. As used copy of such inquiry or proposal promptly; provided, however, that nothing contained in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than Section 4.1 shall prohibit the transactions contemplated by this Agreement, any offer, proposal or inquiry relating Board of Directors of Heritage from:
(i) furnishing information to, or entering into discussions or negotiations with any third party indication of interest inperson or entity that makes an unsolicited written, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) bona fide proposal to acquire Heritage pursuant to a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution tender or exchange offer or other similar transaction involving transaction, if, and only to the extent that:
(A) the Board of Directors receives a party written opinion from its independent financial advisor that such proposal may be superior to the Merger from a financial point-of-view to Heritage's stockholders;
(B) the Board of Directors determines in good faith that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law (such proposal that satisfies (A) and (B) being referred to herein as a "Superior Proposal"); and
(C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, it:
(1) provides reasonable notice to SouthBanc to the effect that it is furnishing information to, or entering into discussions or negotiations with, another party; and
(2) receives from such person or entity an executed confidentiality agreement in reasonably customary form;
(ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer; or
(iii) failing to make or withdrawing or modifying its Subsidiaries whose assets, individually or recommendation and entering into a Superior Proposal if there exists a Superior Proposal and the Board of Directors determines in good faith that such action is necessary for the aggregate, constitute 25% or more Board of the consolidated assets of the partyDirectors to comply with its fiduciary duties to stockholders under applicable law.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will Company shall not, and will shall cause each of its Subsidiaries and use its reasonable best efforts to cause 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 Proposalto, (ii) knowingly engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or knowingly participate in any discussions with, any person relating to, any Company Acquisition Proposal, except to notify a person that has made or, to the knowledge of Company, is making any inquiries with respect to, or is considering making, a Company 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 the existence 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 the provisions of this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing6.9(a); provided, in the event that after the date of this Agreement and that, prior to the receipt of the Requisite Sterling Company Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party event Company receives an unsolicited bona fide written Company Acquisition Proposal, such party it may, and may permit its Subsidiaries and its 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 to the person making the Acquisition Proposal if the extent that (A) its 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 reasonably be more likely than not expected to result in a violation of be inconsistent with its fiduciary duties under applicable lawlaw or (B) its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors), that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal (as defined herein) and; provided, further, that, prior to furnishing or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyCompany. Each party Company will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Buyer with respect to any Company Acquisition Proposal. Each party Company will promptly (and in any event within twenty-four one (241) hoursbusiness day) advise the other party Buyer following receipt of any Company Acquisition Proposal or any inquiry which could reasonably be expected to lead to an 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), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, ) and will keep the other party 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. Each party Company shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that No Company Entity shall, nor shall it will not, and will cause each authorize or permit any of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not Affiliates or Representatives to, directly or indirectly, (i) solicit, initiate, solicitencourage, knowingly encourage induce or knowingly facilitate inquiries the making, submission or proposals with respect to any Acquisition Proposal, (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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt announcement of any Acquisition Proposal or take any inquiry which action that could reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any information with respect to, 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) an Acquisition Proposal, (iii) subject to Section 8.1(c), approve, endorse or recommend any Acquisition Proposal, or (iv) enter into any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, prior to the Company Stockholder Approval, this Section 8.2(a) shall not prohibit Company from furnishing nonpublic information regarding any Company Entity to, or entering into a confidentiality agreement or discussions or negotiations with, any Person or Group in response to a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (and not withdrawn), but only if (A) no Company Entity or Representative or Affiliate thereof shall have violated any of the restrictions set forth in this Section 8.2; (B) Company’s Board of Directors determines in good faith (based upon the advice of the Company Financial Advisor and the substance thereof Company’s outside legal counsel) that such Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties to Company’s stockholders under applicable Laws; (including C) at least three (3) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Company gives Parent written notice of the identity of such Person or Group and of Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group; (D) Company receives from such Person or Group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic information furnished to such Person or Group by or on behalf of Company and in any event is no less favorable to the Company than the Confidentiality Agreement, dated September 1, 2006, between Company and Parent (the “Confidentiality Agreement”); and (E) at or prior to the time of furnishing such nonpublic information to such Person or Group, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by Company to Parent). In addition to the foregoing, Company shall provide Parent with at least two (2) business days prior written notice of any meeting of Company’s Board of Directors at which meeting the Board of Directors is reasonably expected to consider a Superior Proposal or resolve to recommend a Superior Proposal to its stockholders and together with such notice a copy of the most recently proposed documentation relating to such Superior Proposal; provided, further, that Company hereby agrees promptly to provide to Parent any revised documentation and any related Acquisition Agreement.
(b) Company shall notify Parent as promptly as practicable (and in any event within one (1) business day) of the receipt by Company, or any of its Representatives, of any Acquisition Proposal received by Company or of any request for nonpublic information, indication of interest or other inquiry received by Company, which Company reasonably believes could lead to an Acquisition Proposal, and shall provide Parent with the material terms and conditions of such request or Acquisition Proposal and the identity of the person Person or Group making any such inquiry request or Acquisition Proposal (including a copy of such request or Acquisition Proposal). Company shall at all times keep Parent fully informed of the status of such Acquisition Proposal, will provide the other party with an unredacted copy inquiry, indication of interest or request for information and of all amendments or modifications to any such Acquisition Proposal, inquiry, indication of interest or request for information.
(c) Company shall immediately cease, and shall cause its Affiliates, Company Subsidiaries and Representatives to cease, any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to (or which could reasonably lead to) any Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements similar agreement relating to which it any Acquisition Proposal (regardless of whether entered into before or any of its Subsidiaries is a party in accordance with the terms thereof. As used after date hereof); provided that Company may inform such Persons that this Agreement has been entered into.
(d) Nothing in this AgreementAgreement shall be deemed to restrict Company from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act or the rules of the Nasdaq Stock Market, “Acquisition Proposal” means, with respect Inc. or responding to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, unsolicited proposal or inquiry relating toby advising the person making such proposal or inquiry of the terms of this Section 8.2.
(e) Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 8.2, by any Company Entity or any third party indication of interest in, (i) any acquisition Affiliate or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more Representative of any class Company Entity shall be deemed to be a breach of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partythis Section 8.2 by Company.
Appears in 1 contract
Acquisition Proposals. (a) Each party Subject to Section 8.2(b), each of Adcare and Family agrees that it will shall not, directly or indirectly, and will cause each of shall instruct its Subsidiaries and its and their respective officers, directors, employees, agents, agents or advisors and or other representatives (collectively, “Representatives”) or consultants not to, directly or indirectly, (i) initiateuntil the Effective Time or the termination of this Agreement, solicit, knowingly encourage solicit or knowingly facilitate inquiries initiate any proposals or proposals with respect to any Acquisition Proposal, (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, offers from any person relating to any Acquisition Proposal Proposal.
(b) As promptly as reasonably practicable (and in any event within two days) after receipt of any Acquisition Proposal, the recipient thereof (“Receiving Party”) shall provide the other party (“Non-Receiving Party”) with written notice of the material terms and conditions of such Acquisition Proposal, request or (iv) unless this Agreement has been terminated in accordance with its termsinquiry; the identity of the Person or Persons making any such Acquisition Proposal, approve request or enter into any term sheet, letter inquiry; and a copy of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether all written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) materials provided in connection with or relating to any such Acquisition Proposal, request or inquiry. The Receiving Party shall keep the Non-Receiving Party informed on a reasonably current basis of the status and details of any such Acquisition Proposal or request, and shall promptly (and in any event within two days) provide to the Non-Receiving Party a copy of all written materials subsequently provided to or by the Receiving Party in connection with such Acquisition Proposal or request.
(c) Notwithstanding anything to the foregoingcontrary contained in Section 8.2(a), in the event that after the date of this Agreement hereof and prior to obtaining the receipt of the Requisite Sterling Voterequisite stockholder approval, in the case of Sterling, (1) either Family or the Requisite Webster Vote, in the case of Webster, a party Adcare receives an unsolicited bona fide unsolicited, bonafide written Acquisition Proposal, such Proposal from a third party may, that did not result from a breach of this Section 8.2 and may permit (2) its Subsidiaries and its 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 or a committee thereof determines in good faith (after receiving the advice of following consultation with its outside legal 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 is, or is reasonably likely to constitute an offer that is more favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts 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. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other stockholders than the transactions contemplated by this Agreement, and is reasonably capable of being consummated (a “Superior Offer”), then such Receiving Party , its Board of Directors or a committee thereof may directly or indirectly through advisors, agents, other intermediaries or representatives, take the following actions:
(i) furnish non-public information to the third party making such Acquisition Proposal (provided that (A) such Receiving Party enters into a confidentiality agreement the terms of which are at least as restrictive to the third party as the terms contained in the Confidentiality Agreement referred to in Section 10.9 with the third party prior to furnishing any offernon-public information, proposal and (B) substantially concurrently with furnishing such information to such third party, such party furnishes copies of such information to the Non-Receiving Party , to the extent not previously provided to the Non-Receiving Party); and
(ii) engage in discussions and negotiations (including exchanging draft agreements) with the third party (and its representatives) with respect to the Acquisition Proposal.
(d) Except as expressly permitted in this Section 8.2(d), the Board of Directors of the Receiving Party (or inquiry relating toany committee thereof) shall not: (A) withdraw, or modify or change in any manner adverse to the Non-Receiving Party its recommendation in favor of the Merger; (B) approve, adopt or recommend any Acquisition Proposal; or (C) approve or recommend, or allow itself or any subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to any Acquisition Proposal (any of the foregoing a “Change of Recommendation"). Notwithstanding anything to the contrary contained in this Section 8.2, in response to an unsolicited, bona fide written Acquisition Proposal after the date hereof and prior to obtaining the requisite stockholder approval, the Board of Directors of the Receiving Party, or any third party indication committee thereof, may effect a Change of interest inRecommendation and terminate this Agreement to enter into a definitive agreement effectuating the Superior Offer described below, if, and only if, all of the following conditions set forth in clauses (i) any acquisition or purchase, direct or indirect, through (v) are satisfied:
(i) the Board of 25% or more Directors of the consolidated assets Receiving Party, or any committee thereof, shall have determined in good faith (after consultation with outside legal counsel and financial advisors, its Board of Directors or any committee thereof) that such Acquisition Proposal constitutes a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more Superior Offer (after giving effect to all of the consolidated assets adjustments to the terms of the party, this Agreement which may be offered by it including pursuant to clause (iii) below);
(ii) any tender offer The Receiving Party (A) shall deliver to the Non-Receiving Party written notice (a "Change of Recommendation Notice") of its intention to take such action, at least three business days (the “Notice Period") in advance, specifying in such notice the material terms and conditions of such Superior Offer (including a self-tender offerthe identity of the party making the Superior Offer); and (B) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more the event of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in material revisions to the aggregate, constitute 25% or more Superior Offer after the start of the consolidated assets Notice Period, the Receiving Party shall promptly deliver a new Change of Recommendation Notice to the party, or Non-Receiving Party and comply with the requirements of this clause (ii) with respect to such new notice;
(iii) a mergerafter delivering the Change of Recommendation Notice, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or the Receiving Party shall provide the Non-Receiving Party with an opportunity to make such adjustments in the aggregateterms and conditions of this Agreement during such three business day period, constitute 25% or more and negotiate with respect thereto during such three business day period;
(iv) The Board of Directors of the consolidated assets Receiving Party, or any committee thereof, shall have determined, after consultation with outside legal counsel and financial advisors, its Board of Directors or any committee thereof, in good faith, that the failure of the partyBoard of Directors to effect a Change of Recommendation or to terminate this Agreement would reasonably be expected to result in a breach of its fiduciary obligations to the stockholders under applicable Law; and
(v) The Receiving Party shall not have breached any of the provisions set forth in this Section 8.2.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officersdirectors and officers not to, directors, employees, agents, advisors and representatives (collectively, “Representatives”) shall not permit its and their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (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, 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 6.13) 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 Sterling Hexcel Vote, in the case of SterlingHexcel, or the Requisite Webster Woodward Vote, in the case of WebsterWoodward, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its 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 and such person’s Representatives 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Hexcel or Woodward, as applicable, with respect to any Acquisition Proposal. , and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” meansshall mean, with respect to Webster Hexcel or SterlingWoodward, as applicable, other than the transactions contemplated by this AgreementMerger, any offer, proposal or inquiry relating toinquiry, or any third third-party indication of interest ininterest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25% %) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party (or its affiliates) beneficially owning twenty-five percent (25% %) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25% %) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such transaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Woodward, Inc.)
Acquisition Proposals. (a) Each party agrees that it will PCB shall not, and will cause each nor shall it permit any of its Subsidiaries and to, nor shall it or any of its and Subsidiaries authorize or permit any of their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or knowingly facilitate inquiries or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent 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 agreement related 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 (each, an “Acquisition Agreement”), or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt PCB Stockholders’ Meeting, and without any breach of the Requisite Sterling Voteterms of this Section 7.5(a), in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party (A) PCB receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the PCB Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and may permit its Subsidiaries and its 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 (B) the person making the Acquisition Proposal if the PCB Board of Directors of such party concludes determines in good faith (faith, after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take participate in discussions with such actions Person concerning such Acquisition Proposal would be more likely than not to result in a violation of its fiduciary duties under applicable law; providedLaw, that, prior then PCB may (x) furnish information (including non-public information) with respect to furnishing PCB to any confidential or nonpublic information permitted to be provided such Person pursuant to this sentence, such party shall have entered into a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between NCC and PCB dated October 23, 2017 (provided that PCB must contemporaneously furnish to NCC all such information furnished to such Person), and (y) participate in negotiations with the person making such Person regarding such Acquisition Proposal on terms no less favorable Proposal.
(b) Except as set forth in Section 10.1(k), neither the PCB Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to NCC, the approval or recommendation by the PCB Board, or such committee, of the Merger or this Agreement; (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iii) authorize or permit PCB or any of its Subsidiaries to enter into any Acquisition Agreement.
(c) PCB agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause PCB shall direct its Subsidiaries and Representatives its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Persons with respect to any Acquisition Proposal. Each party PCB agrees that it will notify NCC promptly (and in any event within twenty-four (24) 24 hours) advise the other party following receipt of if, to PCB’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, PCB, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposaloffers, and will thereafter PCB shall keep the other party apprised of any related developmentsNCC informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. PCB also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySubsidiaries.
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that it will not, and will cause each of its Subsidiaries and use its reasonable best efforts to cause 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 inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, Proposal or (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 Proposal; provided, that, prior to the adoption of this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter by the stockholders 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 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoingCompany by the Requisite Company Vote, in the event that the Company receives an unsolicited bona fide written Acquisition Proposal after the date of this Agreement and prior to the receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its 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 advisorsadvisor) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior 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 the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, the Company shall have provided such party information to Purchaser and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partythe Company. Each party The Company will, and will use its reasonable best efforts to cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Purchaser with respect to any Acquisition Proposal. Each party The Company will promptly (and in any event within twenty-four (24) hours) advise the other party Purchaser in writing following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of (including a copy of the most recent proposed acquisition agreement, if any), and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Purchaser 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 Acquisition Proposal. Each party The Company shall use its reasonable best efforts efforts, subject to enforce applicable law, to, within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Purchaser and its affiliates and its and their Representatives) pursuant to any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal. Unless this Agreement is contemporaneously terminated in accordance with its terms, the terms thereof. As used Company shall not, and shall cause its Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement in this Agreement, “respect of an Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, Proposal (other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest a confidentiality agreement referred to and entered into in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party Signature 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 inquiries or proposals with respect to any Acquisition Proposal, (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 (other than the parties to this Agreement and their Representatives), 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 6.136.12) 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 Sterling Signature Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party Signature receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.12, such party Signature may, and may permit its Subsidiaries and its 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 but only to the extent that, prior to doing so, the Board of Directors of such party Signature concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its outside financial advisors) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and (B) 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, Signature shall have provided such party information to Esquire and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partySignature. Each party Signature will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party Esquire with respect to any Acquisition Proposal. Each party Signature will promptly (within twenty-four (24) hours) advise the other party Esquire following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Esquire with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposal, and will keep the other party Esquire apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Signature shall use its reasonable best efforts to (x) enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof, and (y) within five (5) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Esquire and its Representatives in their capacity as such) pursuant to any such agreement. As used in this Agreement, “Acquisition Proposal” means, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party Signature and its Subsidiaries or 25% or more of any class of equity or voting securities of a party Signature or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySignature, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party Signature or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the partySignature, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party Signature or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of Signature. As used in this Agreement, “Superior Proposal” means any unsolicited bona fide written offer or proposal made by a third party to consummate an Acquisition Proposal that Signature’s Board of Directors determines in good faith (after receiving the partyadvice of its outside counsel and, with respect to financial matters, its outside financial advisors) (x) would, if consummated, result in the acquisition of all, but not less than all, of the issued and outstanding shares of Signature’s common stock or all, or substantially all, of the assets of Signature, (y) would result in a transaction that (i) involves consideration to the holders of the shares of Signature’s common stock that is, after accounting for payment of the Termination Fee that may be required hereunder, more favorable, from a financial point of view, than the consideration to be paid to the holders of shares of Signature’s common stock pursuant to this Agreement, considering, among other things, the nature of the consideration being offered, and any material regulatory approvals or other risks associated with the timing of the proposed transaction beyond, or in addition to, those specifically contemplated hereby, and which proposal is not conditioned upon obtaining financing and (ii) is, in light of the other terms of such proposal, more favorable to the shareholders of Signature than the Mergers and the other transactions contemplated by this Agreement, and (z) is reasonably likely to be completed on the terms proposed, in each case, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Esquire Financial Holdings, Inc.)
Acquisition Proposals. (a) Each party agrees that it will P▇▇▇▇ shall not, and will shall cause each of its Subsidiaries Town Square and its and their respective officersRepresentatives, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) continue or otherwise maintain, initiate, solicitsolicit or encourage (including by way of furnishing information or assistance), knowingly encourage or knowingly facilitate take any other action to facilitate, any inquiries or proposals with respect to the making of any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toproposal that constitutes, 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 6.13) 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 Sterling Vote, in the case of Sterling, or the Requisite Webster Vote, in the case of Webster, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and reasonably may permit its Subsidiaries and its 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 it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition to, any Competing Proposal, and the substance thereof (including the terms and conditions or enter into or maintain discussions or negotiate with any Person in furtherance of and the identity or relating to such inquiries or to obtain a Competing Proposal, or agree to or endorse any Competing Proposal, or authorize or permit any Representative of the person making such inquiry P▇▇▇▇ or Acquisition Proposal), will provide the other party with an unredacted copy of Town Square to take any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with such inquiry or Acquisition Proposalaction, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party P▇▇▇▇ shall use its reasonable best efforts to enforce cause the Representatives of P▇▇▇▇ not to take any existing confidentiality such action, and P▇▇▇▇ shall promptly notify City if any such inquiries or standstill agreements proposals are made regarding a Competing Proposal, and P▇▇▇▇ shall keep City informed, on a current basis, of the status and terms of any such proposals; provided, however, that prior to which it or any of its Subsidiaries is a party in accordance with the terms thereof. As used P▇▇▇▇ Shareholder Adoption, nothing contained in this AgreementSection shall prohibit P▇▇▇▇ from, “Acquisition Proposal” meansin connection with a Superior Competing Transaction, with respect to Webster or Sterling, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating furnishing information to, or entering into discussions or negotiations with, any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) Person that makes an unsolicited bona fide proposal to acquire P▇▇▇▇ and/or Town Square pursuant to a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution combination or other similar transaction involving if, and only to the extent that, (A) the P▇▇▇▇ Board, after consultation with independent legal counsel, determines in good faith that such action is reasonably required for the P▇▇▇▇ Board to comply with its fiduciary duties to shareholders imposed by MGCL, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, P▇▇▇▇ provides written notice to City to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, (C) prior to furnishing such information to such Person, P▇▇▇▇ receives from such Person an executed confidentiality agreement with terms no less favorable to P▇▇▇▇ than those governing confidentiality between City and P▇▇▇▇, and (D) P▇▇▇▇ keeps City informed, on a party or its Subsidiaries whose assetscurrent basis, individually or in the aggregate, constitute 25% or more of the consolidated assets status and details of the partyany such discussions or negotiations.
Appears in 1 contract