Acquisition Proposals. 4.6.1 Consumers shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2 (a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Philadelphia Suburban Corp), Agreement and Plan of Merger (Consumers Water Co)
Acquisition Proposals. 4.6.1 Consumers (a) Except as expressly permitted by this Section 5.6, from and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, (i) the Company shall, and shall cause its subsidiaries and Affiliated Entities and its and their respective Representatives to (A) cease and cause to be terminated any solicitation, discussion or negotiation or other activities with any Third Parties with respect to a Competing Proposal, and (B) request any such Third Party or any other Third Party that prior to the date hereof executed a confidentiality agreement in connection with its consideration of a Competing Proposal to promptly return or destroy all confidential information concerning the Company and its subsidiaries and Affiliated Entities; and (ii) the Company shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of cause its subsidiaries and Affiliated Entities not to, shall not permit its and its subsidiaries’ and Affiliated Entities’ respective Representatives to, and shall direct its and its subsidiaries’ and Affiliated Entities’ respective Representatives not to, directly or indirectly, (iA) solicit, initiate initiate, knowingly encourage or encourage the submission of knowingly facilitate (including by providing information or granting any Acquisition Proposal (as defined belowwaiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes or otherwise) any inquiry, discussion, offer or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal request that constitutes, or may could reasonably be expected to lead to, a Competing Proposal, (B) engage, continue or participate in any discussions (except to notify such Third Party of the existence of this Section 5.6) or negotiations concerning, or furnish any non-public information relating to the Company or any of its subsidiaries or Affiliated Entities to, or afford access to the properties, books or records of the Company or its subsidiaries and Affiliated Entities to, any Third Party relating to a Competing Proposal or any offer or proposal that would reasonably be expected to lead to a Competing Proposal or any Third Party that, to the knowledge of the Company, is seeking to make, or has made, a Competing Proposal, (C) approve, endorse, recommend or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal (an “Alternative Acquisition Proposal; Agreement”) or (D) resolve to propose, agree or publically announce an intention to do any of the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, from and after the date of this Agreement until obtaining the Requisite Stockholder Approval, if the Company receives a bona fide unsolicited written Competing Proposal from any Third Party which did not, directly or indirectly, arise from any breach of Section 5.6(a), the Company or the Company Board, directly or indirectly through its Representatives, may, (i) contact such Third Party to clarify the terms and conditions thereof, (ii) furnish non-public information to such Third Party (provided, however, that (A) prior to so furnishing such information, the Company receives from such Third Party an executed Acceptable Confidentiality Agreement, (B) any non-public information concerning the Company or its subsidiaries or the Affiliated Entities provided to any Third Party given such access shall, to the extent not previously provided to Parent or Merger Sub, be substantially concurrently provided to Parent or Merger Sub (which requirement may be satisfied by posting such information to the Electronic Data Room provided that written notice of such posting (which may be satisfied by email) is provided to or made available to Parent promptly (and in any event within four (4) hours) after such posting) and (C) the Company and the Company Board and their respective Representatives shall withhold such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any pricing or other matters that are highly sensitive or competitive in nature if the exchange of such information (or portions thereof) could reasonably be likely to be harmful to the operation of the Company in any material respect), and (iii) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal, if and only if, at any time prior with respect to receipt each of the approval of the Merger by the holders of the Consumers Common Shares clause (the "Consumers Applicable Period"i), (ii) and (iii) above, (x) such Third Party has submitted a bona fide unsolicited written Competing Proposal which did not, directly or indirectly, arise from any breach of Section 5.6(a) and which the Company Board of Directors of Consumers determines in good faith, after consultation with outside counselits financial and legal advisors, constitutes, or would reasonably be expected to lead to, a Superior Proposal, (y) the Company Board determines in good faith, after consultation with its legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (z) the Company has provided prior oral and written notice to Parent and Merger Sub of the determination of the Board.
(c) Except as set forth in Section 5.6(d) or Section 5.6(e), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation, (ii) fail to include the Company Recommendation in the Proxy Statement from the time it is necessary required to be first filed pursuant to Section 5.2(a), (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Competing Proposal, or resolve to do so any foregoing or (iv) fail to reaffirm the Company Recommendation or fail to recommend against any Competing Proposal subject to Regulation 14D under the Exchange Act in order any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Proposal (any of the actions described in clauses (i) through (iv) of this Section 5.6(c) and the proviso set forth in Section 5.6(g), an “Adverse Recommendation Change”) or (v) cause or permit the Company to comply enter into any Alternative Acquisition Agreement.
(d) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to, but not after, obtaining the Requisite Stockholder Approval, the Company Board shall be permitted to take any of the actions set forth in Section 5.6(c)(i) and Section 5.6(c)(ii) if (i) an event, fact, development, circumstance or occurrence (but specifically excluding any Competing Proposal) that materially improves the business, assets, operations or prospects of the Company or its subsidiaries and that was not known to the Company or Company Board as of the date hereof, becomes known to the Company Board after the date of this Agreement (an “Intervening Event”), (ii) as a result thereof, the Company Board determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (iii) the Company Board has complied with the requirements set forth in clauses (A) through (C) of Section 5.6(e) as if such requirements in connection with an Adverse Recommendation Change relating to a Superior Proposal related to an Intervening Event.
(e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(b), at any time prior to, but not after, obtaining the Requisite Stockholder Approval, the Company Board shall only be permitted to (y) effect an Adverse Recommendation Change or (z) cause or permit the Company to enter into an Alternative Acquisition Agreement and terminate this Agreement under Section 7.1(c)(ii) (provided, that, concurrently with or prior to such termination the Company pays to Parent the Termination Fee) if and only if, in either case, (i) the Company Board has received a bona fide unsolicited written Competing Proposal which did not, directly or indirectly, arise from or in connection with any breach of Section 5.6(a) or Section 5.6(b) and that, in the good faith determination of the Company Board, after consultation with its financial and legal advisors, constitutes a Superior Proposal and (ii) the Company Board determines in good faith, after consultation with its legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall not take the actions in either clause (y) or (z) above unless and until (A) the Company notifies Parent in writing (a “Notice of Superior Proposal”), at least three (3) Business Days in advance of taking such action, that the Company Board intends to take the action in clause (y) or (z) above, as the case may be, which Notice of Superior Proposal shall specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and shall attach the agreement and all related documentation providing for such Superior Proposal; (B) after providing such Notice of Superior Proposal and prior to taking such action in clause (y) or (z) above, as the case may be, the Company shall negotiate in good faith with Parent during such three (3) Business Days period (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement as would permit the Company Board (consistent with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1Law) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action in clause (y) or (z) above, as the case may be; and (C) the Company Board shall have considered in good faith any changes to PSC this Agreement offered in writing by Parent and shall have determined in good faith that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal (or material change to the "Consumers Notice"Intervening Event) shall require a new Notice of Superior Proposal and compliance the Company shall be required to comply again with the requirements of this Section 4.6.2
5.6(e); provided, however, that references to the three (a3) furnish information Business Days period above shall be deemed to be references to a two (2) Business Day period with respect to Consumers any such amendment to a previous Superior Proposal (or Intervening Event); provided, further, that in no event shall such new notice period shorten the original notice period.
(f) From and its subsidiaries after the date hereof, the Company shall promptly (and, in any event, within twenty-four (24) hours, notify Parent and Merger Sub of receipt by the Company of any Competing Proposal or any offer or proposal that could reasonably be expected to lead to a Competing Proposal (or any inquiry or request for negotiating or discussing a Competing Proposal) or any request for non-public information in connection with any Competing Proposal or offer or proposal that could reasonably be expected to lead to a Competing Proposal, the material terms and conditions of any such Competing Proposal or request (including the identity of the Third Party and, if applicable, copies of any documents relating to such Competing Proposal (provided, that any fee letters may be redacted to the extent required to comply with confidentiality provisions), and shall as promptly as reasonably practicable (and in any event on a daily basis) advise Parent and Merger Sub of any material amendments to any person making such Competing Proposal or request and shall keep Parent reasonably informed on a Superior Proposal daily basis of the status and terms thereof. The Company shall not enter into any agreement with any such Third Party which would prevent the Company from complying with the provisions of this Agreement.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from (i) complying with its disclosure obligations under applicable Law with regard to a Competing Proposal, including taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to a customary confidentiality agreement Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (as or any similar communication to the Company’s stockholders) or (ii) making any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to the Company’s stockholders), which “stop, look and listen” communication shall include an indication that the Company Board has not changed the Company Recommendation, in the case of either clause (i) or (ii), if the Company Board has determined by Consumers in good faith, after consultation with legal advisors, that the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that any disclosures pursuant to clause (i) above other than an express rejection of the applicable tender or exchange offer or an unqualified reaffirmation of the Company Recommendation shall be deemed to be an Adverse Recommendation Change. Between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, upon the written request by Parent (A) following any disclosure specified in clauses (i) or (ii) above or (B) in the event (x) a Competing Proposal has been made publicly known, (y) an Intervening Event has been made publicly known or (z) any other event or circumstance has occurred that could reasonably be expected to prevent or materially delay or impair the ability of the parties to consummate the Merger or the other transactions contemplated by this Agreement on a timely basis, the Company Board shall expressly publicly reaffirm the Company Recommendation within ten (10) Business Days following such request, and failure to do so shall be deemed to be an Adverse Recommendation Change.
(h) The approval of the Company Board for purposes of causing any Takeover Statute to be inapplicable to the transactions contemplated by this Agreement shall be irrevocable and unconditional while this Agreement remains in effect and no Adverse Recommendation Change in and of itself shall change such approval for purposes of causing any Takeover Statute to be inapplicable to the transactions contemplated hereby or thereby. To the extent Parent and/or the Company believes that there has been a breach by a Third Party of any standstill provision to which the Company or any of its outside counselsubsidiaries is a party, the Company shall use reasonable best efforts to enforce such standstill provision to the extent permitted by applicable Law.
(i) Notwithstanding any provision of Section 5.6(b), but subject to applicable Law, and in furtherance of Section 5.6(a), the Company Board shall not grant any waiver or release under any standstill agreement with respect to any class of equity securities of the Company. The Company shall enforce, and shall not release or permit the release of any person from, or amend, waive, terminate or modify, and shall not permit the amendment, waiver, termination or modification of, any provision of, any confidentiality or similar agreement or provision to which the Company or any of its subsidiaries or Affiliated Entities is a party or under which the Company or any of its subsidiaries has any rights to the extent permitted by applicable Law.
(bj) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.:
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall, and shall notdirect and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including any investment banker, financial advisor, attorney, accountant, or other advisor or representative of, Consumers retained by such Party or any of its subsidiaries Subsidiaries) to, immediately cease and cause to be terminated any activities, discussions, or negotiations with any Person other than BancShares and FCB with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and cause its 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 Company Parties or any of their Subsidiaries thereunder.
(b) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, and the Company shall direct and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate initiate, or knowingly encourage (including by way of furnishing information or assistance), or take any other action to knowingly facilitate or that could reasonably be expected to result in any inquiries or discussions regarding, or the submission making of any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Company or any of its Subsidiaries to any Person other than the BancShares Parties and their Subsidiaries relating to or in connection with any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; (as defined below) or (iiiii) participate in any discussions or negotiations regarding, or furnish to otherwise communicate in any person way with any information with respect to, or take any Person other action to facilitate any inquiries or than the making of any proposal that constitutes, or may reasonably be expected to lead to, BancShares Parties and their Subsidiaries regarding any Acquisition Proposal; provided(iv) approve, howeverendorse, that ifor recommend, at or execute, enter into, or consummate, any time indication of interest, letter of intent, or other Contract (other than a confidentiality or nondisclosure agreement contemplated below in Section 7.1(c)) relating to any Acquisition Proposal or requiring the Company 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.
(c) Notwithstanding Section 7.1(b), the Company may, prior to receipt of the approval of the Merger this Agreement by the holders shareholders of the Consumers Common Shares (Company in accordance with the "Consumers Applicable Period")Company’s articles of incorporation and bylaws and applicable Law, if the Board Company’s board of Directors of Consumers directors determines in good faith, after consultation with its outside counsellegal and financial advisors, that it is necessary the failure to do so in order to comply would be inconsistent with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayLaw, in response to a Superior bona fide, written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach in violation of this Section 4.67.1 above that the Company’s board of directors determines in good faith constitutes or is reasonably likely to result in a Superior Proposal, and subject to providing 48 hours’ prior written notice of its decision to take such action to PSC (the "Consumers Notice") BancShares Parties and identifying the Person making the Acquisition Proposal and all of the material terms and conditions of such Acquisition Proposal and compliance with Section 4.6.2
7.1(d), (ai) furnish information with respect to Consumers the Company and its subsidiaries Subsidiaries to any person Person making a Superior such Acquisition Proposal pursuant to a customary confidentiality or nondisclosure agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement (as determined by Consumers after consultation which confidentiality agreement shall not provide such Person the exclusive right to negotiate with its outside counselthe Company) and (bii) participate in discussions or negotiations with such Person regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating .
(d) In addition to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more the obligations of the net revenuesCompany set forth above, net income or the assets Company shall promptly (including equity securitieswithin not more than 24 hours) advise BancShares orally and in writing of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more Subsidiaries’ receipt of any class of voting securities of Consumers or any such subsidiaryAcquisition Proposal, or any mergerrequest for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal, consolidationand shall keep BancShares informed, business combinationon a current basis, recapitalizationof the continuing status thereof, liquidationincluding the material terms and conditions thereof and any changes thereto, dissolution or similar transaction involving Consumers and shall provide to BancShares copies of any written materials received by the Company or any of its Subsidiaries in connection therewith. Additionally, the Company shall contemporaneously provide or make available to BancShares 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 BancShares.
(e) Nothing contained in this Agreement shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position required by, or otherwise complying with, Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A, or from making any disclosure to its’s shareholders required by applicable Law; provided, however, that compliance by the Company, or its board of directors, with such subsidiaryrules, regulations, or applicable Law shall not in any way limit or modify the effect that any action taken pursuant to such rules, regulations, or applicable Law has under any other than the transactions contemplated by provision of this Agreement.
(f) Nothing contained in this Section 7.1 shall (i) prevent the Company or its board of directors from informing any Person of the Company’s obligations under this Section 7.1 or (ii) prevent the Company’s board of directors from taking the actions permitted by Section 7.7(b) of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Entegra Financial Corp.), Merger Agreement (First Citizens Bancshares Inc /De/)
Acquisition Proposals. 4.6.1 Consumers Each party hereto agrees that neither it nor any of its subsidiaries nor any of its respective officers and directors or the officers and directors of its subsidiaries shall, and it shall noteach direct and use its best efforts to cause its employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorneyattorney or accountant retained by it or any of its subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer with respect to a merger, acquisition, consolidation or similar transaction involving, or other advisor any purchase of all or representative any significant portion of the assets or any equity securities of, Consumers it or any of its subsidiaries to, directly (any such proposal or indirectly, (i) solicit, initiate or encourage the submission of any offer being hereinafter referred to as an "Acquisition Proposal (as defined belowProposal") or (ii) participate engage in any discussions or negotiations regardingconcerning, or furnish to provide any person any confidential information with respect or data to, or take have any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead todiscussions with, any person relating to an Acquisition Proposal; provided, however, that ifthe Grace Board may furnish or cause to be furnished information (pursuant to confidentiality arrangements) and may participate in such discussions and negotiations directly or through its representatives if (i) the failure to provide such information or participate in such negotiations and discussions could, at any time prior to receipt in the opinion of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with its outside counsel, that it is necessary reasonably be deemed to do so in order cause the members of the Grace Board to comply with its breach their fiduciary duties to Consumers' shareholders under applicable lawlaw or (ii) another corporation, Consumers maypartnership, person or other entity or group makes a written offer or written proposal which, based upon the identity of the person or entity making such offer or proposal and the terms thereof, and the availability of adequate financing therefor, the Grace Board believes, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice the good faith exercise of its decision to take such action to PSC (the "Consumers Notice") business judgment and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with based upon advice of its outside counsel) legal and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementfinancial advisors, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating could reasonably be expected to any direct or indirect acquisition or purchase of be consummated and represents a business transaction more favorable to its shareholders than the Reorganization (a "Material BusinessHigher Offer") ); provided further, however, that constitutes 15% the foregoing restriction shall not apply to an Acquisition Proposal exclusively involving all or more part of the net revenues, net income stock or assets of Grace-Conn. Grace shall notify the assets (including equity securities) of Consumers and its subsidiaries, taken other parties hereto as a whole, soon as practicable if any such inquiries or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Businessproposals are received by, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers such information is requested from, or any such subsidiary, negotiations or any merger, consolidation, business combination, recapitalization, liquidation, dissolution discussions are sought to be initiated or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementcontinued with it.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Grace W R & Co /Ny/), Agreement and Plan of Reorganization (Fresenius Aktiengesellschaft)
Acquisition Proposals. 4.6.1 Consumers (a) Each of the Company and SmartFinancial shall, and shall notdirect and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including any investment banker, financial advisor, attorney, accountant, or other advisor or representative of, Consumers retained by such Party or any of its subsidiaries Subsidiaries) to, immediately cease and cause to be terminated any activities, discussions, or negotiations with any Person other than SmartFinancial and SmartBank (in the case of the Company) or the Entegra Parties (in the case of SmartFinancial) with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and cause its 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 Entegra Parties or any of their Subsidiaries thereunder.
(b) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, neither the Company nor SmartFinancial shall, and each of the Company and SmartFinancial shall direct and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate initiate, or knowingly encourage (including by way of furnishing information or assistance), or take any other action to knowingly facilitate or that could reasonably be expected to result in any inquiries or discussions regarding, or the submission making of any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding such Party or any of its Subsidiaries to any Person other than the other Parties hereto and their Subsidiaries relating to or in connection with any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; (as defined below) or (iiiii) participate in any discussions or negotiations regarding, or furnish to otherwise communicate in any person way with any information with respect to, or take any Person other action to facilitate any inquiries or than the making of any proposal that constitutes, or may reasonably be expected to lead to, other Parties hereto and their Subsidiaries regarding any Acquisition Proposal; provided(iv) approve, howeverendorse, that ifor recommend, at or execute, enter into, or consummate, any time indication of interest, letter of intent, or other Contract (other than a confidentiality or nondisclosure agreement contemplated below in Section 7.1(c)) relating to any Acquisition Proposal or requiring such Party 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.
(c) Notwithstanding Section 7.1(b), the Company may, prior to receipt the approval of this Agreement by the shareholders of the Company in accordance with the Company’s articles of incorporation and bylaws and applicable Law, or SmartFinancial may, prior to the approval of the Merger Stock Issuance Proposal by SmartFinancial’s shareholders, if the holders Company’s board of the Consumers Common Shares (the "Consumers Applicable Period")directors or SmartFinancial’s board of directors, the Board of Directors of Consumers respectively, determines in good faith, after consultation with its outside counsellegal and financial advisors, that it is necessary the failure to do so in order to comply would be inconsistent with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayLaw, in response to a Superior bona fide, written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach in violation of this Section 4.67.1 that such Party’s board of directors determines in good faith constitutes or is reasonably likely to result in a Superior Proposal, and subject to providing 48 hours prior written notice of its decision to take such action to PSC (the "Consumers Notice") other Parties and identifying the Person making the Acquisition Proposal and all of the material terms and conditions of such Acquisition Proposal and compliance with Section 4.6.2
7.1(d), (ai) furnish information with respect to Consumers such Party and its subsidiaries Subsidiaries to any person Person making a Superior such Acquisition Proposal pursuant to a customary confidentiality or nondisclosure agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement (as determined by Consumers after consultation which confidentiality agreement shall not provide such Person the exclusive right to negotiate with its outside counselsuch Party) and (bii) participate in discussions or negotiations with such Person regarding such Superior Acquisition Proposal.
(d) In addition to the obligations of the Company and SmartFinancial set forth above, each of the Company and SmartFinancial shall promptly (within not more than 24 hours) advise the other Party orally and in writing of its or any of its Subsidiaries’ 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 other Party informed, on a current basis, of the continuing status thereof, including the material terms and conditions thereof and any changes thereto, and shall provide to the other Party copies of any written materials received by such Party or any of its Subsidiaries in connection therewith. For purposes Additionally, each of the Company and SmartFinancial shall contemporaneously provide or make available to the other Party 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 other Party.
(e) Nothing contained in this Agreement shall prohibit the Company or SmartFinancial, or their respective boards of directors, from taking and disclosing to such Party’s shareholders a position required by, or otherwise complying with, Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A, or from making any disclosure to such Party’s shareholders required by applicable Law; provided, however, that compliance by the Company or SmartFinancial, or their respective boards of directors, with such rules, regulations, or applicable Law shall not in any way limit or modify the effect that any action taken pursuant to such rules, regulations, or applicable Law has under any other provision of this Agreement.
(f) Nothing contained in this Section 7.1 shall (i) prevent the Company or SmartFinancial or their respective boards of directors from informing any Person of such Party’s obligations under this Section 7.1, (ii) prevent the Company’s board of directors from taking the actions permitted by Section 7.7(b) of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer (iii) prevent SmartFinancial’s board of directors from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of taking the net revenues, net income or the assets (including equity securitiesactions permitted by Section 7.8(b) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Smartfinancial Inc.), Merger Agreement (Entegra Financial Corp.)
Acquisition Proposals. 4.6.1 Consumers shall (a) HopFed will, and will cause its and its Subsidiaries’, officers, directors, 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, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of and will cause its subsidiaries Subsidiaries and its and their Representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning, 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, except to notify such person of the submission existence 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 HopFed receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, HopFed shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement and which confidentiality agreement shall not provide such person with any exclusive right to negotiate with HopFed.
(c) HopFed will promptly (within three business days) advise First Financial following receipt of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may inquiry which could reasonably be expected to lead to, any to an Acquisition Proposal; provided, however, that if, at any time prior to receipt and the substance thereof (including a summary of the approval terms and conditions of such inquiry or Acquisition Proposal), and will keep First Financial apprised of any updated developments within two business days thereafter, including any amendments to or revisions of the Merger by the holders terms of the Consumers Common Shares (the "Consumers Applicable Period")such inquiry or Acquisition Proposal. HopFed, the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary subject to do so in order to comply with its fiduciary duties duties, shall use its reasonable best efforts to Consumers' shareholders under applicable law, Consumers may, in response enforce any existing confidentiality or standstill agreements to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owningSubsidiaries is a party in accordance with the terms thereof. As used in this Agreement, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary“Acquisition Proposal” shall 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 20% or more of the consolidated assets of HopFed and its Subsidiaries or 20% or more of any class of equity or voting securities of HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of HopFed, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 20% or more of any class of equity or voting securities of HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of HopFed, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% 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 Exchange 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
Samples: Merger Agreement (Hopfed Bancorp Inc), Merger Agreement (First Financial Corp /In/)
Acquisition Proposals. 4.6.1 Consumers shall (a) MainSource agrees that it will not, nor shall it authorize or permit any officerand will cause its Subsidiaries and its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning, 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, except to notify such person of the submission existence 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 MainSource receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, MainSource shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement and which is expressly assignable to First Financial, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with MainSource. MainSource 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 First Financial with respect to any Acquisition Proposal. MainSource will promptly (within twenty-four (24) hours) advise First Financial following receipt of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may inquiry which could reasonably be expected to lead to, any to an Acquisition Proposal; provided, however, that if, at any time prior to receipt and the substance thereof (including the terms and conditions of and the identity of the approval person making such inquiry or Acquisition Proposal and a copy thereof if in writing and any related documentation or correspondence), and will keep First Financial apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the Merger by the holders terms of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it such inquiry or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means MainSource shall use its reasonable best efforts to enforce any inquiry, proposal existing confidentiality or offer from any person relating standstill agreements to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers which it or any of its subsidiaries owningSubsidiaries is a party in accordance with the terms thereof. As used in this Agreement, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary“Acquisition Proposal” shall 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 20% or more of the consolidated assets of MainSource and its Subsidiaries or 20% or more of any class of equity or voting securities of MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of MainSource, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 20% or more of any class of equity or voting securities of MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of MainSource, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of MainSource.
Appears in 2 contracts
Samples: Merger Agreement (Mainsource Financial Group), Merger Agreement (First Financial Bancorp /Oh/)
Acquisition Proposals. 4.6.1 Consumers (a) ICB will, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives (including Sandler X’Xxxxx) to, 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, ICB shall notnot terminate, nor shall it authorize amend, modify or permit waive any officer, director material provision of any confidentiality or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers similar agreement to which ICB or any of its subsidiaries Subsidiaries is a party (other than any involving ONB).
(b) Except as permitted in this Section 5.06, ICB shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including Sandler X’Xxxxx) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or 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 with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the submission approval of any the Merger by ICB’s shareholders, if ICB receives a bona fide Acquisition Proposal that the ICB Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of ICB’s obligations under this Section 5.06, ICB may furnish, or cause to be furnished, non-public information with respect to ICB 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 ICB 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 ICB’s shareholders under applicable law and (B) prior to taking such action, ICB 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 violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including Sandler X’Xxxxx) of ICB or its Subsidiaries shall be a breach of this Section 5.06 by ICB.
(c) Neither the ICB 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 ICB Board of Directors or any such committee of this Agreement or the Merger, 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 (ii) participate cause or permit ICB or IBTC to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regardingother agreement (each, an “Acquisition Agreement”) constituting or furnish to any person any information with respect related to, or take which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of ICB’s shareholders to approve the Merger, the ICB Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the ICB 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 ICB under applicable Law, and provided, further, that the ICB Board of Directors may not effect such an Adverse Recommendation Change unless (A) the ICB 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 a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other action 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 reasonable good faith judgment of the ICB Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to facilitate no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the ICB Board’s fiduciary duties to the shareholders of ICB under applicable law. ICB agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, ICB and its officers, directors and representatives shall negotiate in good faith with ONB and its officers, directors, and representatives regarding any inquiries revisions to the terms of the transactions contemplated by this Agreement proposed by ONB.
(d) In addition to the obligations of ICB set forth in paragraphs (a), (b) and (c) of this Section 5.06, ICB shall as promptly as possible, and in any event within two business days after ICB first obtains knowledge of the receipt thereof, advise ONB orally and in writing of (i) any Acquisition Proposal or any request for information that ICB reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry ICB reasonably believes could lead to any Acquisition Proposal, 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 making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to ICB any offer, material change, modification or development to a previously made offer, letter of intent or any other material development, ICB (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 material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide ONB with true, correct and complete copies of any document or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit ICB 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, in the good faith judgment of the ICB 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 ICB’s obligations under applicable law.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal that constitutesor offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or may that could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase purchase, in one transaction or a series of a business transactions, of (a "Material Business"A) assets or businesses that constitutes 15constitute 20% or more of the net revenues, net income or the assets (including equity securities) of Consumers ICB and its subsidiariesSubsidiaries, taken as a whole, or 15(B) 20% or more of any class of voting equity securities of Consumers ICB or any of its subsidiaries owning, operating or controlling a Material Business, Subsidiaries; (ii) any tender offer or exchange offer that that, if consummated consummated, would result in any person Person beneficially owning 1520% or more of any class of voting equity securities of Consumers ICB or any such subsidiary, or of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or similar transaction involving Consumers ICB, IBTC or any such subsidiaryof its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of ICB, IBTC, or any of ICB’s other Subsidiaries or of any resulting parent company of ICB or IBTC; or (iv) any other transaction the 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 transactions contemplated hereby, other than the transactions contemplated by hereby. For purposes of this AgreementSection 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
Samples: Merger Agreement (Indiana Community Bancorp), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall not, nor and shall it authorize or permit any officercause its Subsidiaries and use its reasonable best efforts to cause its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of 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 (as defined below) or (iiiii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regardingwith, or furnish to any person any information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person or (B) notify a person that has made or, to the knowledge of the Company, is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a); provided, howeverthat, that if, at any time prior to receipt of the approval of the Merger by the holders shareholders of the Consumers Common Shares (Company by the "Consumers Applicable Period")Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of Consumers determines the Company concludes in good faith, faith (after consultation with receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that it is necessary failure to do so in order take such actions would reasonably be expected to comply with violate its fiduciary duties to Consumers' shareholders under applicable law; provided, Consumers mayfurther, in response that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have entered into a Superior Proposal (as defined in Section 4.7.1) confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which was confidentiality agreement shall not solicited by it provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or which did not otherwise result from a breach negotiations conducted before the date of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance Agreement with Section 4.6.2
(a) furnish information any person other than Purchaser with respect to Consumers any Acquisition Proposal. The Company will promptly (and its subsidiaries in any event within one business day) advise Purchaser following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to any 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, and copies of any proposed agreements, financing commitments, term sheets or letters of intent related thereto), and will keep Purchaser reasonably apprised on a Superior Proposal pursuant current basis of any related developments, discussions and negotiations, including any amendments to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding revisions of the material terms of such Superior inquiry or Acquisition Proposal. For purposes of As used in this Agreement, "“Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary” shall 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 the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (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 the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company.
(b) Nothing contained in this Agreement shall prevent the Company or its Board 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 the Company’s 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 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information offer with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryreorganization, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers involving, or any purchase or sale of all or any significant portion of the assets (other than dispositions of assets in connection with any transaction permitted under SECTION 4.1(f)) or 20% or more of the equity securities of, it or any of it Subsidiaries (any such proposal or offer (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an "ACQUISITION PROPOSAL"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or (ii) engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or (iii) accept an Acquisition Proposal, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other material agreement (other than a confidentiality agreement referred to below) relating to any Acquisition Proposal or propose, agree or resolve to do any of the foregoing. Notwithstanding the foregoing, the Company or its Board of Directors shall be permitted to (A) to the extent applicable, comply with Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal (PROVIDED that the Board of Directors of the Company shall not withdraw or modify in any adverse manner its approval or recommendation of this Agreement or the Merger except as set forth below), (B) in response to an unsolicited bona fide written Acquisition Proposal by any Person, recommend such an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, or withdraw or modify in any adverse manner its approval or recommendation of this Agreement or (C) engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person, if and only to the extent that, in any such case as is referred to in clause (B) or (C), (i) the Company Stockholders Meeting shall not have occurred, (ii) the Board of Directors of the Company concludes in good faith that such Acquisition Proposal (x) in the case of clause (B) above constitutes a Superior Proposal or (y) in the case of clause (C) above would reasonably be expected to result in a Superior Proposal, (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Company Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (except for such changes as are necessary in order to permit the Company to comply with its obligations under this Agreement) and (iv) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Board of Directors of the Company notifies Parent promptly of such inquiries, proposals or offers received by, any such information requested from, or any such subsidiarydiscussions or negotiations sought to be initiated or continued with, the Company or any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of such inquiries, proposals or offers. The Company agrees that it will keep Parent informed, on a reasonably current basis, of the status and terms of any such proposals or offers or any other Acquisition Proposal or inquiry or communication with respect to or which would reasonably be expected to lead to an Acquisition Proposal (including any material change to the details of any such terms) and the status of any such material discussions or negotiations. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this SECTION 5.4 of the obligations undertaken in this SECTION 5.4. Nothing in this SECTION 5.4 shall (x) permit the Company to terminate this Agreement (except as specifically provided in ARTICLE VII hereof) or (y) affect any other obligation of the Company under this Agreement.
(b) The term "SUPERIOR PROPOSAL" means any BONA FIDE written offer not solicited by or on behalf of the Company or any Subsidiary thereof made by a third party to consummate an Acquisition Proposal which would result in such third party (including its affiliates and/or stockholders) owning, directly or indirectly, shares of Company Common Stock representing more than 50% of the voting interests and the equity interests in the Company then outstanding or more than 50% of the assets of the Company and its Subsidiaries, taken together (including through a merger of such third party (including its affiliates) and the Company), which the Board of Directors of the Company determines in good faith is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view than the transactions contemplated by this AgreementAgreement (taking into account any changes to the terms of this Agreement proposed by Parent in response to such offer or otherwise) and is reasonably capable of being completed.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) SCB will, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives (including DP&P) to, 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, SCB shall notnot terminate, nor shall it authorize amend, modify or permit waive any officer, director material provision of any confidentiality or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers similar agreement to which SCB or any of its subsidiaries Subsidiaries is a party (other than any involving Horizon).
(b) Except as permitted in this Section 5.06, SCB shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including DP&P) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or 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 with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the submission approval of any the Merger by SCB’s shareholders, if SCB receives a bona fide Acquisition Proposal that the SCB Board of Directors determines in good faith constitutes a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of SCB’s obligations under this Section 5.06, SCB may furnish, or cause to be furnished, non-public information with respect to SCB and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to Horizon 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 SCB 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 SCB’s shareholders under applicable law and (B) prior to taking such action, SCB 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 violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including DP&P) of SCB or its Subsidiaries shall be a breach of this Section 5.06 by SCB.
(c) Neither the SCB 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 Horizon or propose to withdraw or modify in a manner adverse to Horizon (or take any action inconsistent with) the recommendation by such SCB Board of Directors or any such committee of this Agreement or the Merger, 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 (ii) participate cause or permit SCB or Summit Bank to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regardingother agreement (each, an “Acquisition Agreement”) constituting or furnish to any person any information with respect related to, or take which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of SCB’s shareholders to approve the Merger, the SCB Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the SCB 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 SCB under applicable Law, and provided, further, that the SCB Board of Directors may not effect such an Adverse Recommendation Change unless (A) the SCB Board shall have first provided prior written notice to Horizon (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 a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other action material term of such Superior Proposal shall require a new notice and a new ten (10) business day period) and (B) Horizon does not make, within ten (10) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the SCB Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to facilitate no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the SCB Board’s fiduciary duties to the shareholders of SCB under applicable law. SCB agrees that, during the ten (10) business day period prior to its effecting an Adverse Recommendation Change, SCB and its officers, directors and representatives shall negotiate in good faith with Horizon and its officers, directors, and representatives regarding any inquiries revisions to the terms of the transactions contemplated by this Agreement proposed by Horizon.
(d) In addition to the obligations of SCB set forth in paragraphs (a), (b) and (c) of this Section 5.06, SCB shall as promptly as possible, and in any event within two (2) business days after SCB first obtains knowledge of the receipt thereof, advise Horizon orally and in writing of (i) any Acquisition Proposal or any request for information that SCB reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry SCB reasonably believes could lead to any Acquisition Proposal, 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 making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to SCB any offer, material change, modification or development to a previously made offer, letter of intent or any other material development, SCB (or its outside counsel) shall (A) advise and confer with Horizon (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 material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide Horizon with true, correct and complete copies of any document or communication related thereto.
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal that constitutesor offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or may that could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase purchase, in one transaction or a series of a business transactions, of (a "Material Business"A) assets or businesses that constitutes 15constitute 20% or more of the net revenues, net income or the assets (including equity securities) of Consumers SCB and its subsidiariesSubsidiaries, taken as a whole, or 15(B) 20% or more of any class of voting equity securities of Consumers SCB or any of its subsidiaries owning, operating or controlling a Material Business, Subsidiaries; (ii) any tender offer or exchange offer that that, if consummated consummated, would result in any person Person beneficially owning 1520% or more of any class of voting equity securities of Consumers SCB or any such subsidiary, or of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or similar transaction involving Consumers SCB, Summit Bank or any such subsidiaryof its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of SCB, Summit Bank, or any of SCB’s other Subsidiaries or of any resulting parent company of SCB or Summit Bank; or (iv) any other transaction the 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 Horizon of the transactions contemplated hereby, other than the transactions contemplated by hereby. For purposes of this AgreementSection 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 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Neither Sterling nor Umpqua shall, and each of Sterling and Umpqua shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any cause each of its subsidiaries Subsidiaries and controlled affiliates and shall use its reasonable best efforts to cause each of its and their respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a “Representative”) not to, directly or indirectly, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the submission knowingly facilitate (including by way of furnishing information), or take any Acquisition Proposal other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock or equity interests (as defined belowincluding by way of a tender offer) or similar transactions involving such party or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding, regarding an Alternative Transaction or furnish to Acquisition Proposal or (iii) enter into any person agreement regarding any information with respect to, Alternative Transaction 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 ifthat, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayRequisite Sterling Vote, in response to a Superior the case of Sterling, or the Requisite Umpqua Vote, in the case of Umpqua, in the event that either Sterling or Umpqua shall receive an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which and did not otherwise result from a breach of this Section 4.66.11 and which the Board of Directors of the applicable party determines, in its good faith judgment, after receiving the advice of outside counsel, constitutes, or could reasonably be expected to result in, a Superior Proposal, if and subject to providing prior written notice only if, the Board of Directors of such party determines in its decision good faith judgment, after receiving the advice of outside counsel, that failure to take such action to PSC would be inconsistent with its fiduciary duties under applicable Law, such party and its Representatives, as applicable, may (the "Consumers Notice") and compliance with Section 4.6.2
(aA) furnish information with respect to Consumers it and its subsidiaries Subsidiaries to any person the party making a Superior such Acquisition Proposal and its Representatives and financing sources pursuant to a customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the terms contained in the Confidentiality Agreement, provided that a copy of all such written information is substantially simultaneously provided to the other party to this Agreement (as determined by Consumers after consultation with its outside counsel) if not previously provided), and (bB) participate in discussions or and negotiations regarding such Superior Acquisition Proposal. For purposes of .
(b) As used in this Agreement, "Acquisition Proposal" means any inquiry“Alternative Transaction” shall mean, proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase each of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers Umpqua and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiarySterling, other than the transactions contemplated by this Agreement, (A) the acquisition (whether by merger, consolidation, equity investment, joint venture or otherwise) by (x) any person of fifteen percent (15%) or more of the consolidated assets of such party and its Subsidiaries, taken as a whole or (y) such party or any of its Subsidiaries of assets (whether through a merger, reorganization, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation or other transaction) that would constitute more than fifteen percent (15%) of the consolidated assets of such party and its Subsidiaries, taken as a whole; (B) the acquisition in any manner, directly or indirectly, by any person of fifteen percent (15%) or more of the issued and outstanding shares of capital stock of such party; (C) the issuance of fifteen percent (15%) or more of the current number of issued and outstanding shares of capital stock of such party other than in a bona fide capital raising transaction; or (D) any purchase, acquisition, tender offer or exchange offer that, if consummated, would result in any person (or the shareholders of any person) first becoming the beneficial owner of fifteen percent (15%) or more of any class of equity or voting securities of such party or any of its Subsidiaries whose assets individually or in the aggregate, constitute fifteen percent (15%) or more of the consolidated assets of such party and its Subsidiaries, taken as a whole.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not, The Company agrees that neither it nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or substantially all of the assets of the Company or more than 10% of the outstanding equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal," provided that the term "Acquisition Proposal" shall not include any proposal or offer to purchase shares of common stock of the Company Bank Subsidiary pursuant to a Shareholders Agreement, dated as of April 16, 1998, among the Company Bank, the Company Bank Subsidiary and Xxxxxxx X. Xxxxxx). The Company further agrees that neither the Company nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at 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) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement; (C) engaging in any time prior negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to receipt the shareholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"B), (C) or (D) above, the Company Board of Directors of Consumers determines in good faith, faith (after consultation with outside legal counsel, ) that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision failure to take such action would reasonably be expected to PSC constitute a breach of such directors' fiduciary duties under applicable law and the Company Board determines in good faith (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and (b) participate regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the Merger. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct Acquisition Proposals. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Businessoffers are received by, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers such information is requested from, or any such subsidiarydiscussions or negotiations are sought to be initiated or continued with, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than of the transactions contemplated by this Agreementrepresentatives of the Company as soon as the Company becomes aware of the same.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers Except as otherwise provided in this Section 5.10, Seller agrees that neither it nor any of its Subsidiaries nor any of their respective directors, officers or employees shall, and that it shall not, nor shall it authorize or permit any officer, director or employee of, or direct its Subsidiaries and its and its Subsidiaries' agents and representatives and use its best efforts to cause its and its Subsidiaries' agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization (including an Alternate Plan), share exchange, consolidation or similar transaction involving (directly or indirectly), or may reasonably be expected any purchase (directly or though a proposed investment in Equity Securities, debt securities or claims of creditors) of 10% or more of the Transferred Assets Related to lead to, the Business or of the outstanding Equity Securities of Seller or any of its Affiliates directly or indirectly owning Assets Related to the Business (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal" and any such transaction, an "Acquisition"); provided, however, that if, at any time prior to receipt the foregoing shall not restrict Seller from renewing the "exit financing" of the approval Debtors on substantially the same terms as in effect as of March 31, 2005. Seller further agrees that neither it nor any of its Subsidiaries nor any of their respective directors, officers or employees shall, and that it shall direct its Subsidiaries and its and its Subsidiaries' agents and representatives and use its best efforts to cause its and its Subsidiaries' agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to or have any discussions with any Person relating to, an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Seller agrees that it will take the necessary steps to promptly inform the Persons referred to in the first sentence of this Section 5.10 of the Merger by obligations undertaken in this Section 5.10 and to cause them to cease immediately any current activities that are inconsistent with this Section 5.10. Notwithstanding the holders foregoing, nothing contained in this Agreement shall prevent Seller or its board of the Consumers Common Shares directors (the "Consumers Applicable PeriodBoard") from:
(a) (i) complying with its disclosure obligations under Law or the Bankruptcy Code with regard to an Acquisition Proposal, or (ii) prior to the commencement of the Confirmation Hearing, in response to an unsolicited bona fide Acquisition Proposal, (A) (1) providing information to (including discussing any due diligence issues, requests or clarifications with) a Person with whom Seller executes a confidentiality agreement on terms no less favorable to Seller than those contained in the Seller Confidentiality Agreement (as in effect prior to amendment on the date hereof), other than any restrictions on such Person's ability to make or amend an Acquisition Proposal and (2) following receipt of a bona fide unsolicited Acquisition Proposal from such a Person, engaging in discussions with such Person to the extent such discussions are confined to clarifying any term of such Acquisition Proposal or (B) engaging in any negotiations or discussions with any Person who has made such an Acquisition Proposal if and only to the extent that in each such case referred to in clauses (A) and (B) above, (1) the Board of Directors of Consumers determines in good faith, faith after consultation with outside counsel, legal counsel that it is necessary to do so the directors of Seller should take such action in order to comply with its their fiduciary duties to Consumers' shareholders under applicable lawLaw, Consumers may(2) such Acquisition Proposal involves the direct or indirect 111 acquisition by one or more third parties of at least 66-2/3% of (x) all Assets Related to the Business or (y) the outstanding Equity Securities of Seller and (3) in each such case referred to in clause (B) above, the Board determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial and legal advisors) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, and if consummated, would result in a transaction more favorable (taking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b)) to Seller's stakeholders from a financial point of view than the Transaction (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). Seller or any of its Subsidiaries shall notify Buyer promptly (but in no event later than 24 hours) after receipt by Seller or any of its Subsidiaries (or any of their respective directors, officers, employees or advisors) of any Acquisition Proposal, any indication that a third party is considering making an Acquisition Proposal or any request for information relating to the Transferred Assets, any Specified Business, Seller or any of its Subsidiaries or for access to any Specified Business or any of the Transferred Assets by any third party that may be considering making, or has made, an Acquisition Proposal. Seller shall provide such notice orally and in writing and shall identify the third party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. Seller shall keep Buyer fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. Seller shall promptly provide Buyer with any non-public information concerning Seller's business, present or future performance, financial condition or results of operations, provided to any third party that was not previously provided to Buyer; and
(b) participate (i) prior to the commencement of the Confirmation Hearing, engaging in any negotiations or discussions concerning an Alternate Plan with the Committees, the stakeholders of Seller or its Affiliates or their respective advisors (in each case (other than in the case of Committees) with whom Seller enters into, or has entered into, a confidentiality agreement on customary terms under the circumstances that restricts such stakeholder (other than with respect to any other stakeholder who is subject to a substantially similar confidentiality agreement or to the Committees) from (x) disclosing any confidential information regarding Seller and its Affiliates, Buyer and its Affiliates, or information regarding an Alternate Plan, including the status thereof, and (y) making public statements regarding any of the foregoing), but only to the extent that (A) the Board determines in good faith after consultation with outside legal counsel that the directors of Seller should take such action in order to comply with their fiduciary duties under applicable Law and (B) the Board determines in good faith (after consultation with its financial and legal advisors) that such Alternate Plan, if pursued and assuming (for purposes of determining the right to engage in negotiations or discussions pursuant to this Section 5.10(b), but not for purposes of the definition of "Superior Alternate Plan") the support of Seller's stakeholders therefor, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposed Alternate Plan and, if consummated, would result in a transaction more favorable (taking into account, without limitation, the financial terms of any termination fee that may be paid pursuant to Section 8.5(b)) to the stakeholders of Seller and its Affiliates from a financial point of view than the Transaction (any such more favorable Alternate Plan being referred to in this Agreement as a "Superior Alternate Plan") or (ii) after entry of a Confirmation Order satisfying the condition set forth in Section 6.2(g) (but only for so long as such Confirmation Order is in effect), planning for an Alternate Plan that involves the emergence of Debtors as standalone entities with no greater than a 10% additional equity contribution (other than existing Claims), including engaging in any negotiations or discussions concerning an Alternate Plan with stakeholders of Seller or its Affiliates or their advisors, preparing (but not filing) a disclosure statement with respect to such Alternate Plan and preparing and negotiating any intercreditor agreements; provided, however, that such Alternate Plan provides that it can only be confirmed and effective if this Agreement is terminated in accordance with its terms and such planning does not involve any action or omission that could reasonably be expected to materially impair or materially delay the Transaction; provided, further, that nothing in this Section 5.10(b) shall permit any public statements or filings with the Bankruptcy Court or any other court by or on behalf of Seller or its Affiliates. Seller shall notify Buyer of its engagement in discussions or negotiations regarding such Superior Proposalconcerning an Alternate Plan and shall keep Buyer reasonably informed, on a current basis, of material developments that could reasonably be expected to result in an Alternate Plan. For purposes of this Agreement, an "Acquisition ProposalAlternate Plan" means is any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more plan under chapter 11 of the net revenues, net income or the assets Bankruptcy Code (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by Plan) or any liquidation under chapter 7 of the Bankruptcy Code. Without limiting any other obligation set forth in this Agreement, Seller shall, in connection with the activities permitted under this Section 5.10(b), use commercially reasonable efforts to enforce any confidentiality obligations of the Committees and any obligations under the confidentiality agreements described in this Section 5.10(b).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall, and shall cause its Affiliates, Subsidiaries, and its and each of their respective officers, directors, employees, consultants, financial advisors, attorneys, accountants and other advisors, representatives and agents (collectively, “Representatives”) to, immediately cease and cause to be immediately terminated any discussions or negotiations with any parties that may be ongoing with respect to, or that are intended to or could reasonably be expected to lead to, a Takeover Proposal and to request the prompt return or destruction of all confidential information previously furnished to any such parties. The Company shall not, nor and shall it authorize or permit any officercause its Affiliates, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of Subsidiaries and its subsidiaries and their respective Representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate or initiate, knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to knowingly facilitate (including by way of furnishing or disclosing information) any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal; (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal (including any letter of intent, memorandum of understanding or agreement in principle) or enter into any agreement, arrangement or understanding (including any letter of intent, memorandum of understanding or agreement in principle) that requires, or is intended to or that could reasonably be expected to result in, the abandonment, termination or the failure to consummate the Merger or any other transaction contemplated by this Agreement; (iii) initiate or participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to any Takeover Proposal; or (iv) grant any waiver or release under any standstill or any similar agreement with respect to any class of the Company’s equity securities; provided, however, that at any time prior to the adoption of this Agreement by the Required Company Stockholders, in response to a bona fide written unsolicited Takeover Proposal received after the date hereof that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes, or may would reasonably be expected to lead to, any Acquisition a Superior Proposal; provided, howeverand which Takeover Proposal was not, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")directly or indirectly, the result of a breach of this Section 5.5, the Company may, if its Board of Directors of Consumers determines in good faith, faith (after consultation consulting with a financial advisor of nationally recognized reputation and outside counsel, ) that it is necessary required to do so in order to comply with its fiduciary duties to Consumers' shareholders the stockholders of the Company under applicable lawLaw, Consumers mayand subject to compliance with Section 5.5(b), (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided that all such information has previously been provided to Buyer or is provided to Buyer prior to or concurrently with the time it is provided to such Person, and (y) participate in discussions or negotiations with the Person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.
(b) Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withhold, withdraw (or modify or change in a manner adverse to Buyer or Merger Sub), or publicly propose to withhold or withdraw (or modify or change in a manner adverse to Buyer or Merger Sub), the approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of, this Agreement, the Merger or the other transactions contemplated by this Agreement or make any other public statement inconsistent with such recommendation or (B) recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose to approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in and as permitted by Section 5.5(a)) (an “Acquisition Agreement”) or that is intended to or that could reasonably be expected to result in the abandonment, termination or failure to consummate the Merger or any other transaction contemplated by this Agreement. Notwithstanding the foregoing, at any time prior to the adoption of this Agreement by the Required Company Stockholders, the Board of Directors of the Company may make a Company Adverse Recommendation Change in response to a Superior Proposal if such Board of Directors determines in good faith (as defined after consultation with outside counsel and a financial advisor of nationally recognized reputation) that it is required to do so in Section 4.7.1order to comply with its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that (i) which was not solicited by it or which did not otherwise result from a breach of no such Company Adverse Recommendation Change may be made if the Company failed to comply with this Section 4.6, and subject to providing prior 5.5; (ii) no such Company Adverse Recommendation Change shall be made until after the third (3rd) Business Day following Buyer’s receipt of written notice (a “Notice of its decision Adverse Recommendation”) from the Company advising Buyer that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors and the identity(ies) of the Person or group making such Superior Proposal (it being understood and agreed that any amendment to PSC the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new three (the "Consumers Notice"3) Business Day period) and compliance representing that the Company has complied with this Section 4.6.2
5.5; (aiii) furnish information during such three (3) Business Day period, the Company shall negotiate with respect Buyer in good faith to Consumers make such amendments to the terms and conditions of this Agreement as would enable the Company to proceed with its subsidiaries recommendation of this Agreement as so amended and not make a Company Adverse Recommendation Change; and (iv) the Company shall not make a Company Adverse Recommendation Change if, prior to any person making the expiration of such three (3) Business Day period, Buyer makes a Superior Proposal pursuant proposal to a customary confidentiality agreement amend the terms and conditions of this Agreement that the Company’s Board of Directors determines in good faith (as determined by Consumers after consultation with its outside counselcounsel and with financial advisors of nationally recognized reputation) to be at least as favorable as the Superior Proposal after giving effect to, among other things, the payment of the Termination Fee set forth in Section 7.3 hereof.
(c) Promptly on the date of receipt thereof, the Company shall advise Buyer orally and (b) participate in writing of any request for information or any Takeover Proposal, and the terms and conditions of such request, Takeover Proposal, inquiry, discussions or negotiations, and the Company shall promptly on the date of receipt thereof provide to Buyer copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Person or group making any such request, Takeover Proposal or inquiry or with whom any discussions or negotiations regarding are taking place. The Company agrees that it shall keep Buyer fully and promptly informed of the status and details (including amendments or changes or proposed amendments or changes) of any such Superior Proposal. For purposes request, Takeover Proposal or inquiry and keep Buyer fully and promptly informed as to the details of this Agreement, "Acquisition Proposal" means any inquiry, proposal information requested of or offer from any person relating provided by the Company and as to the details of all discussions or negotiations with respect to any direct such request, Takeover Proposal or indirect acquisition inquiry.
(d) Nothing contained in this Section 5.5 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or purchase Rule 14d-9 promulgated under the Exchange Act; provided, however, that in no event shall the Company or its Board of a business (a "Material Business") that constitutes 15% Directors or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeany committee thereof take, or 15% agree or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Businessresolve to take, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated action prohibited by this AgreementSection 5.5(b).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers Franklin agrees that it shall not, nor and that it shall it authorize or permit any officerdirect and use its reasonable best efforts to cause its directors, director or employee ofofficers, or any investment bankeremployees, attorney, or other advisor or representative of, Consumers or any of its subsidiaries agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving Franklin, or may reasonably be expected any purchase of all or substantially all of the assets of Franklin or more than 10% of the outstanding equity securities of Franklin (any such proposal or offer being hereinafter referred to lead as an “Acquisition Proposal”). Franklin further agrees that it shall not, and that it shall direct and use its reasonable best efforts to cause its directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt of nothing contained in this Agreement shall prevent Franklin or the approval of the Merger by the holders of the Consumers Common Shares Franklin Board from (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply A) complying with its fiduciary duties to Consumers' shareholders disclosure obligations under applicable federal or state law, Consumers may, ; (B) providing information in response to a Superior request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Franklin Board receives from the Person so requesting such information an executed confidentiality agreement; (as defined C) engaging in Section 4.7.1any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal or (D) which was not solicited by it recommending such an Acquisition Proposal to the stockholders of Franklin, if and only to the extent that, in each such case referred to in clause (B), (C) or which did not otherwise (D) above, (i) the Franklin Board determines in good faith (after receipt of a written opinion of outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the Franklin Board determines in good faith (after receipt of a written opinion of 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 proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to Franklin’s stockholders from a breach financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Franklin in compliance with this Section 4.66.8 hereof and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a “Superior Proposal.” Franklin agrees that it will immediately cease and cause to be terminated any existing activities, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance discussions or negotiations with Section 4.6.2
(a) furnish information any parties conducted heretofore with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in Acquisition Proposals. Franklin agrees that it will notify First Place if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementare sought to be initiated or continued with, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers Franklin or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or any significant portion of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "ACQUISITION PROPOSAL") or (ii) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that if, at any time prior nothing contained in this Agreement shall prevent the Company or its board of directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to receipt of the approval of the Merger by the holders of the Consumers Common Shares an Acquisition Proposal; (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, B) providing information in response to a Superior request there for by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (as defined in Section 4.7.19.7); (C) which was not solicited by it engaging in any negotiations or which did not otherwise result from a breach discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending such an Acquisition Proposal to the stockholders of this Section 4.6the Company, if and subject only to providing prior written notice the extent that, in each such case referred to in clause (B), (C) or (D) above, (i) the board of its decision to take directors of the Company determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to PSC comply with their respective fiduciary duties under applicable law and, in the case referred to in clause (D) above, (ii) the "Consumers Notice") and compliance with Section 4.6.2
board of directors of the Company believes in good faith (a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal is reasonably likely to be consummated, and would, if consummated, result in a transaction more favorable to the Company's stockholders than the transaction contemplated by this Agreement (b) participate any such more favorable Acquisition Proposal being referred to in this Agreement as a "SUPERIOR PROPOSAL"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesforegoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.3 and in the Confidentiality Agreements. The Company agrees that it will notify Parent promptly, net income but in no event more than 24 hours, after any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, any of its representatives and thereafter shall keep Parent informed, on a current basis, on the status of any such negotiations or discussions (but not including the identity of any third party or the assets (including equity securities) of Consumers terms and its subsidiaries, taken as a whole, or 15% or more conditions of any class such offer or proposal). The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of voting securities of Consumers acquiring it or any of its subsidiaries owning, operating Subsidiaries to return all confidential information heretofore furnished to such Person by or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more on behalf of any class of voting securities of Consumers it or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementof its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Augat Inc)
Acquisition Proposals. 4.6.1 Consumers (a) The Company and its officers, directors, employees, representatives and agents shall not, nor shall it authorize immediately cease any existing discussions or permit negotiations with any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage the submission of parties conducted heretofore with respect to any Acquisition Proposal (as defined belowin Section 6.2(b) hereof). The Company and its Subsidiaries will not, and will use their best efforts to cause their respective officers, directors, employees and investment bankers, attorneys, accountants or other agents retained by the Company or any of its Subsidiaries not to, (iii) participate in initiate or solicit, directly or indirectly, any discussions or negotiations regarding, or furnish to any person any information inquiries 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 toof, any Acquisition Proposal; provided, howeveror (ii) except as permitted below, that ifengage in negotiations or discussions with, at or furnish any time prior information or data to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal any Third Party (as defined in Section 4.7.18.3(b) which was not solicited hereof) relating to an Acquisition Proposal (other than the transactions contemplated hereby and by it or which did not otherwise result from a breach of the Ancillary Agreements). Notwithstanding anything to the contrary contained in this Section 4.66.2, the Company may furnish information to, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations (including, as a part thereof, making any counter- proposal) with, any Third Party which submits an unsolicited written Acquisition Proposal to the Company if the Company's Board of Directors by a majority vote determines in its good faith judgment, based as to legal matters upon the written opinion of legal counsel, that the failure to furnish such information or participate in such discussions or negotiations would likely constitute a breach of the Board's fiduciary duties under applicable Law; provided, that nothing herein shall prevent the Board from taking, and disclosing to the Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided further, that the Board shall not recommend that the shareholders of the Company tender their Shares in connection with any such tender offer unless the Board by a majority vote determines in its good faith judgment, based as to legal matters on the written opinion of legal counsel, that failing to take such action would likely constitute a breach of the Board's fiduciary duty; provided further, that the Company shall not enter into any agreement with respect to any Acquisition Proposal except concurrently with or after the termination of this Agreement (except with respect to confidentiality and standstill agreements to the extent expressly provided below). The Company shall promptly provide Parent with a copy of any written Acquisition Proposal received and a written statement with respect to any non-written Acquisition Proposal received, which statement shall include the identity of the parties making the Acquisition Proposal and the terms thereof. The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal with a Third Party. In no event shall the Company provide non-public information regarding the Retained Business to any Third Party making an Acquisition Proposal unless such Superior Proposal. party enters into a confidentiality agreement containing provisions designed to reasonably protect the confidentiality of such 25
(b) For purposes of this Agreement, the term "Acquisition ProposalACQUISITION PROPOSAL" means shall mean any inquirybona fide proposal, proposal whether in writing or offer from any person relating otherwise, made by a Third Party to any direct or indirect acquisition or purchase of a business acquire beneficial ownership (a "Material Business"as defined under Rule 13(d) that constitutes 15% or more of the net revenuesExchange Act) of all or a material portion of the Assets of, net income or any material equity interest in, any of the Company, a Retained Subsidiary or the assets (including equity securities) Retained Business pursuant to a merger, consolidation or other business combination, sale of Consumers and its subsidiariesshares of capital stock, taken as a wholesale of Assets, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers either the Company, a Retained Subsidiary or the Retained Business, including, without limitation, any single or multi-step transaction or series of related transactions which is structured to permit such third party to acquire beneficial ownership of any material portion of the Assets of, or any such subsidiarymaterial portion of the equity interest in, either the Company, a Retained Subsidiary or the Retained Business (other than the transactions contemplated by this AgreementAgreement and the Ancillary Agreements); provided, that the term "ACQUISITION PROPOSAL" shall not include any transactions which relate solely to the businesses to be owned by Spinco and the Spinco Companies following the Spin-Off and which could not have an adverse effect on the consummation of the Offer, the Merger, the Spin- Off or the transactions contemplated hereby.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Heartland will, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives (including DP&P) to, 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, Heartland shall notnot terminate, nor shall it authorize amend, modify or permit waive any officer, director material provision of any confidentiality or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers similar agreement to which Heartland or any of its subsidiaries Subsidiaries is a party (other than any involving Horizon).
(b) Except as permitted in this Section 5.06, Heartland shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including DP&P) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or 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 with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the submission approval of any the Merger by Heartland’s shareholders, if Heartland receives a bona fide Acquisition Proposal that the Heartland Board of Directors determines in good faith constitutes a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of Heartland’s obligations under this Section 5.06, Heartland may furnish, or cause to be furnished, non-public information with respect to Heartland and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to Horizon 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 Heartland 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 Heartland’s shareholders under applicable law and (B) prior to taking such action, Heartland 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 violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including DP&P) of Heartland or its Subsidiaries shall be a breach of this Section 5.06 by Heartland.
(c) Neither the Heartland 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 Horizon or propose to withdraw or modify in a manner adverse to Horizon (or take any action inconsistent with) the recommendation by such Heartland Board of Directors or any such committee of this Agreement or the Merger, 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 (ii) participate cause or permit Heartland or Heartland Bank to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regardingother agreement (each, an “Acquisition Agreement”) constituting or furnish to any person any information with respect related to, or take which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of Heartland’s shareholders to approve the Merger, the Heartland Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the Heartland 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 Heartland under applicable Law, and provided, further, that the Heartland Board of Directors may not effect such an Adverse Recommendation Change unless (A) the Heartland Board shall have first provided prior written notice to Horizon (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 a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other action material term of such Superior Proposal shall require a new notice and a new ten (10) business day period) and (B) Horizon does not make, within ten (10) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Heartland Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to facilitate no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the Heartland Board’s fiduciary duties to the shareholders of Heartland under applicable law. Heartland agrees that, during the ten (10) business day period prior to its effecting an Adverse Recommendation Change, Heartland and its officers, directors and representatives shall negotiate in good faith with Horizon and its officers, directors, and representatives regarding any inquiries revisions to the terms of the transactions contemplated by this Agreement proposed by Horizon.
(d) In addition to the obligations of Heartland set forth in paragraphs (a), (b) and (c) of this Section 5.06, Heartland shall as promptly as possible, and in any event within two (2) business days after Heartland first obtains knowledge of the receipt thereof, advise Horizon orally and in writing of (i) any Acquisition Proposal or any request for information that Heartland reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry Heartland reasonably believes could lead to any Acquisition Proposal, 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 making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to Heartland any offer, material change, modification or development to a previously made offer, letter of intent or any other material development, Heartland (or its outside counsel) shall (A) advise and confer with Horizon (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 material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide Horizon with true, correct and complete copies of any document or communication related thereto.
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal that constitutesor offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or may that could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase purchase, in one transaction or a series of a business transactions, of (a "Material Business"A) assets or businesses that constitutes 15constitute 20% or more of the net revenues, net income or the assets (including equity securities) of Consumers Heartland and its subsidiariesSubsidiaries, taken as a whole, or 15(B) 20% or more of any class of voting equity securities of Consumers Heartland or any of its subsidiaries owning, operating or controlling a Material Business, Subsidiaries; (ii) any tender offer or exchange offer that that, if consummated consummated, would result in any person Person beneficially owning 1520% or more of any class of voting equity securities of Consumers Heartland or any such subsidiary, or of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or similar transaction involving Consumers Heartland, Heartland Bank or any such subsidiaryof its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of Heartland, Heartland Bank, or any of Heartland’s other Subsidiaries or of any resulting parent company of Heartland or Heartland Bank; or (iv) any other transaction the 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 Horizon of the transactions contemplated hereby, other than the transactions contemplated by hereby. For purposes of this AgreementSection 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 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) From and after the date hereof until the termination of this Agreement, neither Target nor shall it authorize any of its officers, directors, employees, representatives, agents or permit any officeraffiliates (including, director or employee ofwithout limitation, or any investment banker, attorneyfinancial advisor, attorney or other advisor accountant retained by Target or representative ofTarget Bank), Consumers or any of its subsidiaries towill, directly or indirectly, initiate, solicit or knowingly encourage (i) solicit, initiate including by way of furnishing non-public information or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regardingassistance), or furnish to any person any information with respect tofacilitate knowingly, 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 (as defined below), 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 Target Bank or any investment banker, financial advisor, attorney, accountant or other representative retained by Target Bank to take any such action; providedPROVIDED, howeverHOWEVER, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), nothing contained in this SECTION 4.1 shall prohibit Target or the Board of Directors of Consumers determines in good faithTarget from:
(i) furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal to acquire Target pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that:
(A) the Board of Directors of Target, after consultation with outside and based upon the advice of independent legal counsel, determines in good faith after taking into account various legal, financial and regulatory aspects of the proposal and the person making such proposal that such proposal (x) if accepted, is reasonably likely to be consummated, and (y) if consummated, is reasonably likely to result in a transaction that is more favorable to Target's stockholders, from a financial point of view, than the transactions contemplated by the Agreement (such proposal being referred to herein as a "SUPERIOR PROPOSAL"); and
(B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Target:
(1) provides prompt notice to Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity; 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 recommendation and entering into a Superior Proposal if there exists a Superior Proposal and the Board of Directors of Target, after consultation with independent legal counsel, determines in good faith that such action is necessary to do so in order for the Board of Directors of Target to comply with its fiduciary duties to Consumers' shareholders stockholders under applicable law. Target shall notify Acquiror orally and in writing of any Acquisition Proposal (including, Consumers maywithout limitation, the terms and conditions of any such Acquisition Proposal and the identity of the person making such Acquisition Proposal) as promptly as practicable (but, in response to a Superior Proposal (as defined in Section 4.7.1any event, no later than 24 hours) which was not solicited by it or which did not otherwise result from a breach after the receipt thereof and shall keep Acquiror informed of this Section 4.6, the status and subject to providing prior written notice details of its decision to take any such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2Acquisition Proposal.
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition ProposalACQUISITION PROPOSAL" means shall mean any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets following (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.hereunder) involving Target or Target Bank:
Appears in 1 contract
Samples: Merger Agreement (Northeast Pennsylvania Financial Corp)
Acquisition Proposals. 4.6.1 Consumers (a) Folsom Lake Bank shall, and shall notcause its Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents and representatives (including, without limitation, any investment banker, financial advisor, attorney, accountant or other advisor representative retained by it) (all of the foregoing, collectively, “Representatives”) to immediately cease any written or representative oforal discussions, Consumers 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 Folsom Lake Bank or any Affiliate thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction. Folsom Lake Bank 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 Folsom Lake Bank other than CVCY, Central Valley Community Bank and its subsidiaries financial and legal advisors.
(b) From the date of this Agreement through the Effective Time, Folsom Lake Bank shall not, and shall cause its Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate or knowingly encourage the submission (including by way of any Acquisition Proposal (as defined below) knowingly furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action designed to facilitate or that could reasonably be expected to result in, any inquiries or the making of any proposal or offer that constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at (ii) provide any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it confidential information or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries data to any person making a Superior Proposal pursuant Person relating to a customary confidentiality agreement any Acquisition Proposal, (as determined by Consumers after consultation with its outside counsel) and (biii) participate in any discussions or negotiations regarding such Superior 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 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 (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. For purposes of this Agreement, "the term “Acquisition Proposal" ” means any inquiry, proposal or offer offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to do any of the foregoing from any person Person relating to any (x) direct or indirect acquisition or purchase of a business any material assets or deposits (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securitiesas applicable) of Consumers and its subsidiariesFolsom Lake Bank, taken as a whole, (y) direct or 15indirect acquisition or purchase of more than 25% or more of any class of voting securities Equity Securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryFolsom Lake Bank, or any (z) merger, consolidation, business combination, recapitalization, tender offer, stock purchase, liquidation, dissolution or similar transaction involving Consumers or any such subsidiaryFolsom Lake Bank, other than the transactions contemplated by this Agreement. Folsom Lake Bank agrees that any violation of this Section 5.7 by any Representative of Folsom Lake Bank with the Knowledge of Folsom Lake Bank shall be deemed a breach of this Section 5.7 by Folsom Lake Bank. Folsom Lake Bank 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) a material reduction in the consideration to be paid to shareholders of Folsom Lake Bank in the Merger, or (ii) a failure to induce CVCY and Central Valley Community Bank to enter into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Central Valley Community Bancorp)
Acquisition Proposals. 4.6.1 Consumers (a) Neither Sterling nor Umpqua shall, and each of Sterling and Umpqua shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any cause each of its subsidiaries Subsidiaries and controlled affiliates and shall use its reasonable best efforts to cause each of its and their respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a "Representative") not to, directly or indirectly, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the submission knowingly facilitate (including by way of furnishing information), or take any Acquisition Proposal other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock or equity interests (as defined belowincluding by way of a tender offer) or similar transactions involving such party or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding, regarding an Alternative Transaction or furnish to Acquisition Proposal or (iii) enter into any person agreement regarding any information with respect to, Alternative Transaction 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 ifthat, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayRequisite Sterling Vote, in response to a Superior the case of Sterling, or the Requisite Umpqua Vote, in the case of Umpqua, in the event that either Sterling or Umpqua shall receive an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which and did not otherwise result from a breach of this Section 4.66.11 and which the Board of Directors of the applicable party determines, in its good faith judgment, after receiving the advice of outside counsel, constitutes, or could reasonably be expected to result in, a Superior Proposal, if and subject to providing prior written notice only if, the Board of Directors of such party determines in its decision good faith judgment, after receiving the advice of outside counsel, that failure to take such action to PSC would be inconsistent with its fiduciary duties under applicable Law, such party and its Representatives, as applicable, may (the "Consumers Notice") and compliance with Section 4.6.2
(aA) furnish information with respect to Consumers it and its subsidiaries Subsidiaries to any person the party making a Superior such Acquisition Proposal and its Representatives and financing sources pursuant to a customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the terms contained in the Confidentiality Agreement, provided that a copy of all such written information is substantially simultaneously provided to the other party to this Agreement (as determined by Consumers after consultation with its outside counsel) if not previously provided), and (bB) participate in discussions or and negotiations regarding such Superior Acquisition Proposal. For purposes of .
(b) As used in this Agreement, "Acquisition ProposalAlternative Transaction" means any inquiryshall mean, proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase each of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers Umpqua and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiarySterling, other than the transactions contemplated by this Agreement, (A) the acquisition (whether by merger, consolidation, equity investment, joint venture or otherwise) by (x) any person of fifteen percent (15%) or more of the consolidated assets of such party and its Subsidiaries, taken as a whole or (y) such party or any of its Subsidiaries of assets (whether through a merger, reorganization, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation or other transaction) that would constitute more than fifteen percent (15%) of the consolidated assets of such party and its Subsidiaries, taken as a whole; (B) the acquisition in any manner, directly or indirectly, by any person of fifteen percent (15%) or more of the issued and outstanding shares of capital stock of such party; (C) the issuance of fifteen percent (15%) or more of the current number of issued and outstanding shares of capital stock of such party other than in a bona fide capital raising transaction; or (D) any purchase, acquisition, tender offer or exchange offer that, if consummated, would result in any person (or the shareholders of any person) first becoming the beneficial owner of fifteen percent (15%) or more of any class of equity or voting securities of such party or any of its Subsidiaries whose assets individually or in the aggregate, constitute fifteen percent (15%) or more of the consolidated assets of such party and its Subsidiaries, taken as a whole.
(c) Each of Sterling and Umpqua shall notify the other party to this Agreement promptly (but in no event later than one business day) after receipt of any Acquisition Proposal or any material modification of or material amendment to any Acquisition Proposal, or any request for nonpublic information relating to such party or any of its Subsidiaries or for access to the properties, books or records of such party or any of its Subsidiaries by any person that has made, or to such party's knowledge is considering making, an Acquisition Proposal. Such notice to the other party to this Agreement shall indicate the identity of the person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requesting non-public information or access to the books and records of such party or any of its Subsidiaries, and the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal. Sterling and Umpqua shall keep the other party to this Agreement fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any such Acquisition Proposal, indication or request.
(d) Each of Sterling and Umpqua and their respective Subsidiaries shall immediately cease and cause to be terminated any existing discussions or negotiations with any persons (other than the other party to this Agreement) conducted heretofore with respect to any of the foregoing. Each of Sterling and Umpqua has not and agrees not to, and to cause its Subsidiaries not to, release any third party from, and also agrees to enforce the confidentiality and standstill provisions of any agreement to which it or its Subsidiaries is a party that remains in effect as of the date hereof. As of the date hereof, the parties agree that Section 8 of the Confidentiality Agreement shall be of no further force or effect.
(e) Nothing contained in this Agreement shall prohibit the Board of Directors of either Sterling or Umpqua from disclosing to its shareholders a position contemplated by Rules 14d-9 and 14e-2(a)(2)-(3) under the Exchange Act; 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; and provided, further, that any such disclosure (other than a "stop, look and listen" or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a modification of the Board Recommendation in a manner adverse to the other party to this Agreement unless the Board of Directors of the party making the disclosure or communication expressly and concurrently reaffirms the Board Recommendation.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Each of BBCN and WIBC agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notcause its and its Subsidiaries’ employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of knowingly facilitate any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information inquiries with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or may could reasonably be expected to lead to, a transaction to effect, (A) a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving it or any of its Subsidiaries that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning 20% or more of any class of equity securities or any amount of securities representing 20% or more of the total voting power of it (or of the surviving parent entity in such transaction) or of any of its Subsidiaries, or (B) any purchase or sale or other acquisition of 20% or more of the consolidated assets (including stock of its Subsidiaries) of it and its Subsidiaries, taken as a whole, or (C) any purchase or sale of, or tender or exchange offer for, or other acquisition of, its voting securities that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning 20% or more of any class of equity securities or any amount of securities representing 20% or more of the total voting power of it (or of the surviving parent entity in such transaction) or of any of its Subsidiaries, or (D) a liquidation, dissolution or winding up of it (any such proposal, offer or transaction in any of the preceding clauses (A), (B), (C) or (D) (other than a proposal or offer made by the other Party or an affiliate thereof) being hereinafter referred to as an “Acquisition Proposal”), (ii) engage or enter into, continue or otherwise participate in any discussions with or provide any confidential information or data to any Person relating to, or engage in any negotiations concerning, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make an Acquisition Proposal or any other proposal that could reasonably be expected to lead to an Acquisition Proposal, or (iii) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal; providedProposal or propose or agree to do any of the foregoing.
(i) Notwithstanding the foregoing, however, that ifthe board of directors of each Party shall be permitted, at any time prior to receipt the approval of the approval principal terms of the Merger by the holders Required WIBC Vote (in the case of WIBC) or at any time prior to the Consumers Common Shares approval and adoption of this Agreement by the Required BBCN Vote (in the "Consumers Applicable Period"case of BBCN), and subject to compliance by such Party with the Board other terms of Directors this Section 6.4 and to such Party first entering into a confidentiality agreement (a copy of Consumers determines which shall be provided to the other Party) with the Person making the Acquisition Proposal described below having provisions (including standstill provisions) that are no less favorable to such Party than those contained in the Confidentiality Agreement (but excluding the exclusivity provisions set forth in Amendment No. 1 to the Confidentiality Agreement) and that expressly permits the Party to comply with its obligations under this Section 6.4, to engage in discussions and negotiations with, or provide any nonpublic information or data to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person made or renewed after the date of this Agreement which such Party’s board of directors (x) concludes in good faithfaith constitutes or is reasonably likely to result in a Superior Proposal and (y) determines that engaging in such discussions and negotiations with, after consultation with outside counselor providing such nonpublic information or data to, that it such Person is necessary to do so in order for such board of directors to comply with its fiduciary duties to Consumers' shareholders its stockholders under applicable lawthe Applicable Legal Requirements.
(ii) Each Party shall notify the other Party promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, Consumers mayor any request for nonpublic information relating to such Party or any of its Subsidiaries by any Person that informs such Party or any of its Subsidiaries that it is considering making, in response or has made, an Acquisition Proposal, or any inquiry from any Person seeking to have discussions or negotiations with such Party relating to a Superior possible Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information any other indication that any Person is considering making an Acquisition Proposal with respect to Consumers it. Such notice shall be made orally and its subsidiaries to confirmed in writing, and shall indicate the identity of the Person making the Acquisition Proposal, inquiry or request and the material terms and conditions of any person making inquiries, proposals or offers (including a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) copy thereof if in writing and (b) participate any related documentation or correspondence). Each Party shall also promptly, and in any event within 24 hours, notify the other Party, orally and in writing, if it enters into discussions or negotiations regarding concerning any Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 6.4(b) (and shall promptly provide to the other Party copies of all material nonpublic information so provided not previously provided to the other Party) and shall keep the other Party promptly and fully informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing within 24 hours of receipt a copy of all material documentation (including all draft agreements) or correspondence relating thereto (including copies of all changes in any terms). At least five (5) business days prior to each meeting of the board of directors of any Party at which such board of directors shall consider and determine whether any offer constitutes a Superior Proposal, such Party shall provide the other Party with a written notice specifying the date and time of such meeting, the reasons for holding such meeting, the terms and conditions of the offer that is the basis of the potential action by the board of directors of such Party (including a copy of any draft definitive agreement reflecting the offer) and the identity of the Person making the offer.
(c) Each of BBCN and WIBC agrees that (i) it shall and shall cause its Subsidiaries, and its and their officers, directors, agents, representatives and advisors to, cease immediately and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal or any proposal that could reasonably be expected to lead to an Acquisition Proposal, and shall promptly request each Person, if any, that has heretofore executed a confidentiality agreement with such Party in connection with the consideration of any Acquisition Proposal or any other such proposal, to return or destroy all confidential information or data heretofore furnished to such Person, (ii) it shall enforce (and not release any third party from or waive) any provisions of, any confidentiality, standstill or similar agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal or any other such proposal and (iii) it shall not take any action to render inapplicable or to exempt any Person from Section 203 of the DGCL or any other antitakeover legislation. For purposes Each of BBCN and WIBC agrees that it shall use commercially reasonable efforts to inform its and its Subsidiaries’ respective directors, executive officers, key employees, agents and representatives of the obligations undertaken in this Section 6.4.
(d) Nothing in this Section 6.4 shall (i) permit either Party to terminate this Agreement or (ii) affect any other obligation of the Parties under this Agreement. Neither Party shall submit to the vote of its stockholders any Acquisition Proposal other than the Merger.
(e) Nothing contained in this Section 6.4 shall prohibit either Party or its Subsidiaries from taking and disclosing to its stockholders a position required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement, "Acquisition Proposal" means including Section 8.1(d) or 8.1(e), as applicable and, provided further, that any inquirysuch disclosure shall be subject to Section 6.11.
(f) Any disclosure (other than a “stop, proposal look and listen” or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more similar communication of the net revenuestype contemplated by Rule 14d-9(f) under the Exchange Act) made pursuant to Section 6.4(e) shall be deemed to be a Change in Recommendation by WIBC or BBCN, net income as the case may be, unless the board of directors of the Party making such disclosure expressly reaffirms its Board Recommendation to its stockholders in favor of the approval of the principal terms of the Merger or the assets adoption of this Agreement, as applicable.
(including equity securitiesg) The provisions of Consumers this Section 6.4 shall be deemed, as between the Parties, to apply to each Party, its Subsidiaries and its subsidiariesand its Subsidiaries’ directors and employees, taken agents and representatives to the same extent as a wholesuch provisions apply to the respective Parties, or 15% or more and each Party shall be responsible for any breach of any class of voting securities of Consumers or such provisions by any of its subsidiaries owningor its Subsidiaries’ directors, operating employees, agents or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) MBT will, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives (including Boenning) to, 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, MBT shall notnot terminate, nor shall it authorize amend, modify or permit waive any officer, director material provision of any confidentiality or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers similar agreement to which MBT or any of its subsidiaries Subsidiaries is a party (other than any involving MainSource).
(b) Except as permitted in this Section 5.06, MBT shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including Boenning) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or 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 with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the submission approval of any the Merger by MBT’s shareholders, if MBT receives a bona fide Acquisition Proposal that the MBT Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of MBT’s obligations under this Section 5.06, MBT may furnish, or cause to be furnished, non-public information with respect to MBT and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to MainSource 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 MBT 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 MBT’s shareholders under applicable law and (B) prior to taking such action, MBT has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(a) by any representative (including Boenning) of MBT or its Subsidiaries shall be a breach of this Section 5.06 by MBT.
(c) Neither the MBT 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 MainSource or propose to withdraw or modify in a manner adverse to MainSource (or take any action inconsistent with) the recommendation by the MBT Board of Directors or any such committee of this Agreement or the Merger, 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 (ii) participate cause or permit MBT or Merchants to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regardingother agreement (each, an “Acquisition Agreement”) constituting or furnish to any person any information with respect related to, or take which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of MBT’s shareholders to approve the Merger, the MBT Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change; provided, that the MBT 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 MBT under applicable Law, and provided, further, that the MBT Board of Directors may not effect such an Adverse Recommendation Change unless (A) the MBT Board shall have first provided prior written notice to MainSource (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 a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other action material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) MainSource does not make, within five business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the MBT Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to facilitate no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the MBT Board’s fiduciary duties to the shareholders of MBT under applicable law. MBT agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, MBT and its officers, directors and representatives shall negotiate in good faith with MainSource and its officers, directors, and representatives regarding any inquiries revisions to the terms of the transactions contemplated by this Agreement proposed by MainSource.
(d) In addition to the obligations of MBT set forth in paragraphs (a), (b) and (c) of this Section 5.06, MBT shall as promptly as possible, and in any event within two business days after MBT first obtains knowledge of the receipt thereof, advise MainSource orally and in writing of (i) any Acquisition Proposal or any request for information that MBT reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry MBT reasonably believes could lead to any Acquisition Proposal, 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 making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to MBT any material change, modification or development to a previously made offer or letter of intent or any other material development occurs, MBT (or its outside counsel) shall (A) advise and confer with MainSource (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 material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide MainSource with true, correct and complete copies of any document or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit MBT 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, in the good faith judgment of the MBT 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 MBT’s obligations under applicable law.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal that constitutesor offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or may that could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase purchase, in one transaction or a series of a business transactions, of (a "Material Business"A) assets or businesses that constitutes 15constitute 20% or more of the net revenues, net income or the assets (including equity securities) of Consumers MBT and its subsidiariesSubsidiaries, taken as a whole, or 15(B) 20% or more of any class of voting equity securities of Consumers MBT or any of its subsidiaries owning, operating or controlling a Material Business, Subsidiaries; (ii) any tender offer or exchange offer that that, if consummated consummated, would result in any person Person beneficially owning 1520% or more of any class of voting equity securities of Consumers MBT or any such subsidiary, of its Subsidiaries; or (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or similar transaction involving Consumers MBT, Merchants or any such subsidiaryof its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of MBT, Merchants, or any of MBT’s other than the transactions contemplated by Subsidiaries or of any resulting parent company of MBT or Merchants. For purposes of this AgreementSection 5.06 only, 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 1 contract
Acquisition Proposals. 4.6.1 Consumers Xxxxx shall not, nor and shall it authorize or permit any officercause Town Square and its respective Representatives, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries not to, directly or indirectly, (i) solicitcontinue or otherwise maintain, initiate initiate, solicit or encourage the submission (including by way of any Acquisition Proposal (as defined below) furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes, or reasonably may reasonably be expected to lead to, any Acquisition Competing Proposal, or enter into or maintain discussions or negotiate with any Person in furtherance of 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 Xxxxx or Town Square to take any such action, and Xxxxx shall use its reasonable best efforts to cause the Representatives of Xxxxx not to take any such action, and Xxxxx shall promptly notify City if any such inquiries or proposals are made regarding a Competing Proposal, and Xxxxx shall keep City informed, on a current basis, of the status and terms of any such proposals; provided, however, that prior to Xxxxx Shareholder Adoption, nothing contained in this Section shall prohibit Xxxxx from, in connection with a Superior Competing Transaction, furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide proposal to acquire Xxxxx and/or Town Square pursuant to a merger, consolidation, share exchange, business combination or other similar transaction if, at any time prior and only to receipt of the approval of extent that, (A) the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faithXxxxx Board, after consultation with outside independent legal counsel, determines in good faith that it such action is necessary to do so in order reasonably required for the Xxxxx Board to comply with its fiduciary duties to Consumers' shareholders under applicable lawimposed by MGCL, Consumers may(B) prior to furnishing such information to, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in entering into discussions or negotiations regarding with, such Superior Proposal. For purposes of this AgreementPerson, "Acquisition Proposal" means any inquiryXxxxx provides written notice to City to the effect that it is furnishing information to, proposal or offer entering into discussions or negotiations with, such Person, (C) prior to furnishing such information to such Person, Xxxxx receives from any person relating such Person an executed confidentiality agreement with terms no less favorable to any direct or indirect acquisition or purchase of Xxxxx than those governing confidentiality between City and Xxxxx, and (D) Xxxxx keeps City informed, on a business (a "Material Business") that constitutes 15% or more current basis, of the net revenues, net income or the assets (including equity securities) of Consumers status and its subsidiaries, taken as a whole, or 15% or more details of any class of voting securities of Consumers such discussions or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementnegotiations.
Appears in 1 contract
Samples: Merger Agreement (City Holding Co)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither the Company nor any of its subsidiaries nor any of the respective officers and directors of the Company or its subsidiaries shall, and that it shall notdirect and use its best efforts to cause its employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by the Company or any of its subsidiaries subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to shareholders of the Company) with respect to a merger, consolidation, share exchange or similar transaction involving, or may reasonably any purchase of all or 15% or more of the assets or the equity securities of, the Company or any of its subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") (it being understood that the initial press release relating to this Agreement and the transactions contemplated hereby shall not be expected deemed an initiation, solicitation or encouragement of an Acquisition Proposal.) The Company further agrees that neither it nor any of its subsidiaries nor any of the officers and directors of it or its subsidiaries, shall, and that it shall direct and use its best efforts to lead cause its employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors obtains from the Person so requesting such information an executed confidentiality agreement containing material terms no more favorable to a third-party than those contained in the Confidentiality Agreement (as defined in Section 3.4); (C) engaging in any time prior negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending such an Acquisition Proposal to receipt the shareholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"B), (C) or (D) above, the Board of Directors of Consumers the Company determines (i) in good faith, after consultation with outside counsel, that it such action is necessary to do so in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable law, Consumers may(ii) in good faith, that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account appropriate legal, financial and regulatory aspects of the proposal and the Person making the proposal and (iii) in response good faith, after consultation with an investment banking firm of national standing, that such Acquisition Proposal is reasonably likely, if consummated, to result in a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result transaction more favorable to the Company's shareholders from a breach financial point of view than the transaction contemplated by this Section 4.6Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance discussions or negotiations with Section 4.6.2
(a) furnish information any parties conducted heretofore with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesforegoing. The Company will take the necessary steps to inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 3.2. The Company will notify Purchaser immediately if any such inquiries or proposals are received by, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeany such information is requested from, or 15% any such negotiations or more of any class of voting securities of Consumers discussions are sought to be initiated or continued with the Company or any of its subsidiaries owning, operating or controlling representatives. The Company will further identify the offeror and furnish to Purchaser a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more copy of any class such inquiry or proposal, if it is in writing, or shall inform Purchaser of voting securities the material terms of Consumers or any such subsidiaryinquiry or proposal, if it is oral, and shall promptly advise Purchaser of any material development relating to such inquiry or any merger, consolidation, business combination, recapitalization, liquidation, dissolution proposal. The Company also will promptly request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company to return all confidential information heretofore furnished to such person by or similar transaction involving Consumers or any such subsidiary, other than on behalf of the transactions contemplated by this AgreementCompany.
Appears in 1 contract
Samples: Tender Offer Agreement (Koninklijke Philips Electronics Nv)
Acquisition Proposals. 4.6.1 Consumers (a) KSL agrees that neither it nor any of its Subsidiaries nor any of its officers and directors nor those of its Subsidiaries shall, and that it shall notcause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or knowingly take any other action to facilitate that facilitates any inquiries inquiries, or the making of any proposal that constitutesor offer, with respect to, or may reasonably be expected a transaction to lead toeffect, any Acquisition Proposal; provideda merger, howeverreorganization, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers KSL or any of its Subsidiaries, or any purchase, sale or other transfer of 10% or more of the consolidated assets of KSL (including stock of its Subsidiaries) of it or its Subsidiaries, or any purchase or sale of, or tender or exchange offer for, or other transfer of, its equity securities that, if consummated, would result in any Person (or the shareholders of such subsidiaryPerson) beneficially owning securities representing 10% or more of the total voting power of KSL or the voting power of any of its Subsidiaries (any such proposal, offer or transaction, other than (a) a proposal or offer made by VLI or an Affiliate thereof, or (b) a proposal, offer or transaction solely involving the transactions contemplated equity securities of KPP to the extent KPP and KPP GP comply with their obligation relating thereto under the KPP Merger Agreement, being hereinafter referred to as an "ACQUISITION PROPOSAL"), (ii) except as the board of directors of KSL determines in good faith, after consultation with outside counsel and taking into account any change in the terms of the KSL Merger or other proposal made reasonably promptly by VLI after being notified pursuant to Section 6.4(b), that doing so is necessary for such directors to comply with their fiduciary duties under applicable law (and in such case only after entering into a confidentiality agreement with such Person on terms no less favorable to KSL than the Confidentiality Agreement and conditioned upon contemporaneously providing to VLI a copy of any such information or data that it is providing to any such Person pursuant to this AgreementSection 6.4 to the extent not previously provided or made available to VLI), have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iv) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the foregoing related to any Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (Valero L P)
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall not, and shall cause its Subsidiaries not to (whether directly or indirectly through Affiliates, directors, officers, employees, attorneys, investment bankers, representatives, advisors or other intermediaries (“Representatives”)) nor shall it (directly or indirectly) the Company authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries or its Subsidiaries’ Representatives to, : (i) directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information inquiries with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal, (ii) engage in any negotiations or discussions concerning, or may reasonably be expected provide access to lead its properties, books and records or any confidential information or data to, any Person relating to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal or (v) agree to resolve to take, or take, any of the actions prohibited by the foregoing clauses (i), (ii), (iii) and (iv); provided, however, it is understood and agreed that ifany determination or action by the Board permitted under Section 6.5(b) or Section 6.5(e) shall not be deemed to be a breach or violation of this Section 6.5(a). From and after the date hereof, at the Company shall, and shall cause each of its Subsidiaries and shall instruct its and their Representatives to, (A) immediately cease any time prior and all existing activities, solicitations, discussions or negotiations with any Person (other than the parties hereto) conducted heretofore with respect to receipt any of the approval foregoing, (B) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which the Merger by Company or any of its Subsidiaries is a party or of which the holders Company or any of its Subsidiaries is a beneficiary and (C) not terminate, waive, amend, release or modify any provision of any standstill agreement (including any standstill provision contained in any confidentiality or other agreement) to which the Consumers Common Shares Company or any of its Affiliates or Representatives is a party, unless, solely with respect to this clause (the "Consumers Applicable Period"C), the Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of Directors the Board under applicable Law. The Company shall promptly after the date of Consumers this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to an Acquisition Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representatives.
(b) Notwithstanding anything to the contrary in Section 6.5(a), nothing contained in this Agreement shall prevent the Company or the Board from (i) taking and disclosing to the stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (ii) complying with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen” communication by the Board to the Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication), or from making any disclosure if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to make such disclosure would reasonably be expected to be inconsistent with the fiduciary duties of the Board under applicable Law, (provided, that neither the Company nor the Board may recommend any Acquisition Proposal unless permitted by Section 6.5(e) and the Company may not fail to make, or withdraw, modify or change in a manner adverse to Parent all or any portion of, the Recommendation unless in compliance with Section 6.5(f)); (iii) prior to obtaining the Company Requisite Vote, providing access to its properties, books and records and providing information or data in response to a request therefor by a Person or group who has made a bona fide unsolicited written Acquisition Proposal after the date hereof (it being understood that such Person or group may have engaged in discussions with the Company prior to the date hereof and may submit an unsolicited Acquisition Proposal following the date hereof), not resulting from a breach of Section 6.5(a), if the Board receives from the Person so requesting such information an executed confidentiality agreement (a copy of which shall be provided to Parent) on terms that are no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement must contain a standstill provision) and, to the extent nonpublic information that has not been made available to Parent is made available to such Person, make available or furnish such nonpublic information to Parent substantially concurrent with the time it is provided to such Person; or (iv) prior to obtaining the Company Requisite Vote, contacting and engaging in any negotiations or discussions with any Person or group and their respective Representatives who has made an unsolicited Acquisition Proposal after the date hereof (it being understood that such Person or group may have engaged in discussions with the Company prior to the date hereof and may submit an unsolicited Acquisition Proposal following the date hereof), not resulting from a breach of Section 6.5(a), if, and only if, prior to taking such action as set forth in the foregoing clauses (iii) and (iv), the Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors (A) that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board under applicable Law and (B) that, such Acquisition Proposal, constitutes, or could reasonably be expected to result in, a Superior Proposal.
(c) The Company shall notify Parent promptly (but in any event within 24 hours) after receipt or occurrence of any Acquisition Proposal or the determination of the existence of an Intervening Event, as applicable, of (i) the material terms and conditions of any such Acquisition Proposal (including the identity of the Person making any such Acquisition Proposal and if applicable, providing copies of any written inquiries, requests, proposals or offers and any proposed agreements relating thereto, which may be redacted to the extent necessary to do so protect confidential information of the Person making such Acquisition Proposal) or the Intervening Event, as applicable and (ii) any request for non-public information or to engage in order negotiations or discussions that would reasonably be expected to comply lead to an Acquisition Proposal. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement; provided, however, that, the Company may waive any such provision in response to an Acquisition Proposal to the Board made under circumstances in which the Company is permitted under this Section 6.5 to participate in discussions regarding an Acquisition Proposal, but only to the extent necessary to allow it to respond to such Acquisition Proposal as permitted under this Section 6.5. The Company shall keep Parent reasonably informed of the status and material details (including any amendments or proposed amendments) of any such Acquisition Proposal or Intervening Event, as applicable, and keep Parent reasonably informed as to the material details of all developments, discussions or negotiations regarding the financial and any other material terms of the Acquisition Proposal or request (including by providing, within 24 hours after receipt thereof, copies of all drafts of proposed agreements relating thereto which may be redacted to the extent necessary to protect confidential information of the Person making such Acquisition Proposal).
(d) Except as permitted by Section 6.5(e), the Board will not (i) withhold, withdraw or modify, or propose to withhold, withdraw or modify, in any manner adverse to Parent or each Merger Sub, the Recommendation, (ii) approve, recommend, endorse or otherwise declare advisable, or publicly propose to approve, recommend, endorse or otherwise declare advisable, an Acquisition Proposal, (iii) fail to include the Recommendation in the Proxy Statement, (iv) fail to publicly recommend against any Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance of such Acquisition Proposal by the Company’s stockholders, which shall constitute a failure to recommend against such Acquisition Proposal), or to publicly re-affirm the Recommendation, in each case, within five (5) Business Days following an Acquisition Proposal that has been publicly announced (or such fewer number of days as remain prior to the Stockholders Meeting, as it may be adjourned or postponed in accordance with this Agreement) (any of the actions described in the foregoing clauses (i), (ii), (iii) and (iv), an “Adverse Recommendation Change”) or (v) approve, recommend, declare advisable or enter into any definitive agreement relating to an Acquisition Proposal (excluding, for the avoidance of doubt, a confidentiality agreement as contemplated by Section 6.5(b)).
(e) Notwithstanding anything in this Section 6.5 to the contrary, at any time prior to obtaining the Company Requisite Vote:
(i) if the Board determines in good faith, after consultation with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayfinancial advisors and outside legal counsel, in response to a Superior bona fide written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which that did not otherwise result from a material breach of this Section 4.66.5, that (A) such proposal is a Superior Proposal and subject to providing prior written notice of its decision (B) the failure to take such action would reasonably be expected to PSC (be inconsistent with the "Consumers Notice") Board’s fiduciary duties under applicable Law, the Company or the Board may effect such Adverse Recommendation Change and compliance with Section 4.6.2
(a) furnish information terminate this Agreement to enter into a definitive agreement with respect to Consumers such Superior Proposal; provided, however, that the Company shall not effect an Adverse Recommendation Change or terminate this Agreement pursuant to this sentence, and its subsidiaries any purported termination pursuant to any person making this sentence shall be void and of no force or effect, unless (x) the Company complies with the provisions of Section 6.5(c) and (f) in all respects prior to terminating this Agreement and (y) concurrently with such termination, the Company pays to Parent the Termination Fee and enters into a definitive agreement with respect to such Superior Proposal; or
(ii) other than in connection with an Acquisition Proposal that constitutes a Superior Proposal pursuant as provided in clause (i) above, the Board may only effect an Adverse Recommendation Change in response to a customary confidentiality agreement (as determined by Consumers any Intervening Event if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action is inconsistent with the Board’s fiduciary duties under applicable Law; provided, however, the Company shall not effect an Adverse Recommendation Change pursuant to this sentence unless the Company complies with the provisions of Section 6.5(c) and (bf) participate in discussions all respects.
(f) Prior to the Company taking any action permitted under (i) Section 6.5(e)(ii), the Company shall provide Parent with three (3) Business Days’ prior written notice advising Parent it intends to effect a Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor and, during such three (3) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend the terms of this Agreement in a manner that obviates the need to effect a Adverse Recommendation Change or negotiations regarding (ii) Section 6.5(e)(i), the Company shall provide Parent with three (3) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal shall require a new notice and an additional two (2) Business Day period) advising Parent that the Board intends to take such action, and specifying the material terms and conditions of the Superior Proposal and that the Company shall, during such three (3) Business Day period (or subsequent two (2) Business Day period), negotiate in good faith with Parent to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal. .
(g) For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or following terms shall have the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.meanings assigned below:
Appears in 1 contract
Samples: Merger Agreement (Diligent Corp)
Acquisition Proposals. 4.6.1 Consumers shall not, (a) The Company agrees that neither it nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' Representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving it, or may reasonably be expected any purchase of, or tender offer for, 15% or more of the equity securities of it or any of its Subsidiaries listed on Schedule 1 or 15% or more of its and its Subsidiaries' assets (based on the fair market value thereof) taken as a whole (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its Representatives not to, directly or indirectly, have any discussions with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning 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 its board of directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) making any disclosure to the Company's shareholders if, at any time prior to receipt in the good faith judgment of the approval board of directors of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")Company, the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary failure so to do so in order to comply disclose would be inconsistent with its fiduciary duties to Consumers' shareholders obligations under applicable law; (C) engaging in any discussions or negotiations with or providing any information to, Consumers may, any Person in response to a Superior bona fide written Acquisition Proposal (as defined in Section 4.7.1) which by any such Person received after the date hereof that was not solicited by it the Company after the date hereof; or which did not otherwise result from a breach (D) recommending such an Acquisition Proposal to the shareholders of this Section 4.6the Company if and only to the extent that, and subject in such case referred to providing prior written notice in clause (C) or (D), the board of its decision to take such action to PSC directors of the Company concludes in good faith (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement (b) participate any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior with any parties conducted heretofore with respect to any Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of The Company also agrees that it will promptly request each Person that has heretofore executed a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and confidentiality agreement in connection with its subsidiaries, taken as a whole, or 15% or more consideration of any class Acquisition Proposal to return all confidential information heretofore furnished to such Person by or on behalf of voting securities of Consumers it or any of its subsidiaries owningSubsidiaries.
(b) The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2. The Company agrees that it will notify SBC promptly if any such inquiries, operating proposals or controlling a Material Businessoffers are received by, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers such information is requested from, or any such subsidiarydiscussions or negotiations are sought to be initiated or continued with, any of the Company's Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or any mergeroffers and thereafter shall keep SBC informed, consolidationon a current basis, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or of the status and material terms of any such subsidiary, other than proposals or offers and the transactions contemplated by this Agreementstatus of any such discussions or negotiations.
Appears in 1 contract
Samples: Merger Agreement (Southern New England Telephone Co)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its reasonable best efforts to cause its and its Subsidiaries’ employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or 15% or more of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an “Acquisition Proposal”). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) complying with its disclosure obligations under U.S. federal or state law with regard to an Acquisition Proposal; and (ii) at any time prior prior, but not after, this Agreement is submitted for a vote at the Stockholders Meeting, (A) providing information in response to receipt a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement, (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal, or (C) recommending such an Acquisition Proposal to the stockholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that (the "Consumers Applicable Period"x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers the Company determines in good faith, faith after consultation with outside counsel, legal counsel that it such action is necessary likely to do so be required in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable lawlaw and (y) in each case referred to in clause (B) or (C) above, Consumers may, the Board of Directors of the Company determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and (b) participate regulatory aspects of the proposal and the Person making the proposal, and if consummated, is reasonably likely to result in a transaction more favorable to the Company’s stockholders from a financial point of view than the transaction contemplated by this Agreement. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior with any parties conducted heretofore with respect to any Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal The Company agrees that it will take the necessary steps to promptly inform the individuals or offer from any person relating entities referred to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more in the first sentence hereof of the net revenuesobligations undertaken in this Section 6.2 and in the Confidentiality Agreement. The Company agrees that it will notify Parent immediately if any such inquiries, net income proposals or the assets (including equity securities) of Consumers and its subsidiariesoffers are received by, taken as a wholeany such information is requested from, or 15% any such discussions or more negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any class proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of voting securities any such proposals or offers and the status of Consumers any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any of its subsidiaries owning, operating Subsidiaries to return all confidential information heretofore furnished to such Person by or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more on behalf of any class of voting securities of Consumers it or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementof its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers Northern agrees that it shall not, nor and that it shall it authorize or permit any officerdirect and use its reasonable best efforts to cause its directors, director or employee ofofficers, or any investment bankeremployees, attorney, or other advisor or representative of, Consumers or any of its subsidiaries agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving Northern, or may reasonably be expected any purchase of all or substantially all of the assets of Northern or more than 10% of the outstanding equity securities of Northern (any such proposal or offer being hereinafter referred to lead as an “Acquisition Proposal”). Northern further agrees that it shall not, and that it shall direct and use its reasonable best efforts to cause its directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt nothing contained in this Agreement shall prevent Northern or the Northern board of the approval of the Merger by the holders of the Consumers Common Shares directors from (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply A) complying with its fiduciary duties to Consumers' shareholders disclosure obligations under applicable federal or state law, Consumers may, ; (B) providing information in response to a Superior request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Northern board of directors receives from the Person so requesting such information an executed confidentiality agreement; (as defined C) engaging in Section 4.7.1) which was not solicited by it any negotiations or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance discussions with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior who has made an unsolicited bona fide written Acquisition Proposal pursuant or (D) voting to a customary confidentiality agreement recommend such an Acquisition Proposal to the stockholders of Northern, if and only to the extent that, in each such case referred to in clause (as determined by Consumers after B), (C) or (D) above, (i) the Northern board of directors determines in good faith following consultation with its outside counsellegal counsel and financial advisors that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the Northern board of directors determines in good faith following consultation with its outside legal counsel and financial advisors that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to Northern’s stockholders from a financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Northern board of directors in compliance with this Section 6.8 hereof, and upon board approval of the Acquisition Proposal and meeting the requirements set forth in clauses (A), (B), (C) and (bD) participate in of the preceding sentence is herein referred to as a “Superior Proposal.” Northern agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding with any parties conducted heretofore with respect to any Acquisition Proposals. Northern agrees that it will promptly notify (which notification shall not more than 24 hours after the earlier of actual knowledge or receipt of such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal proposal, offer or offer from request) First Place if any person relating to such inquiries, proposals or offers are received by, any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholesuch information is requested from, or 15% any such discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, Northern or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall The Company will not, nor and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to, and shall it authorize or permit any officerdirect its and its Subsidiaries' employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected 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 lead as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, 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 or the New Rights Agreement); provided, however, that if, nothing contained in this Agreement 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 receipt of the approval of the Merger by the holders Company Requisite Vote (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the Confidentiality Agreement (as defined in Section 9.7); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an -40- 47 Acquisition Proposal to the stockholders of the Consumers Common Shares Company, if and only to the extent that, (the "Consumers Applicable Period"i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers the Company determines in good faith, faith after consultation with outside counsel, legal counsel that it such action is necessary to do so in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable lawlaw and (ii) in each case referred to in clause (B) or (C) above, Consumers maythe Board of Directors of the Company determines in good faith (after 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 proposal and the Person making the proposal and would, if consummated, result in response a more favorable transaction than the transaction contemplated by this Agreement, taking into account the long-term prospects and interests of the Company and its stockholders (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement (as defined in Section 4.7.1) which was not solicited by it 9.7). The Company will notify Parent immediately if any such inquiries, proposals or which did not otherwise result from a breach of this Section 4.6offers are received by, and subject to providing prior written notice of its decision to take any such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to is requested from, or any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in such discussions or negotiations regarding are sought to be initiated or continued with, any of its representatives indicating, in connection with such Superior Proposal. For purposes notice, the name of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of such Person and the net revenues, net income or the assets (including equity securities) of Consumers material terms and its subsidiaries, taken as a whole, or 15% or more conditions of any class proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of voting securities any such proposals or offers and the status of Consumers 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 to return all confidential information heretofore furnished to such Person by or on behalf of it or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSubsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Bankers Insurance Group Inc)
Acquisition Proposals. 4.6.1 Consumers Each of ACT and ICH shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries or agents, affiliates, employees, advisors or representatives to, directly or indirectly, (ia) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (iib) participate in or encourage any discussions discussion or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that ifthe foregoing shall not prohibit the ACT Board of Trust Managers or the ICH Board of Directors, at as the case may be, from furnishing information to, or entering into discussions or negotiations with, any time person or entity that makes an unsolicited Acquisition Proposal to the extent that (A) the ACT Board of Trust Managers or the ICH Board of Directors, as the case may be, based upon the advice of outside legal counsel, determines in good faith that such action is required for it to comply with its fiduciary obligations to its shareholders or stockholders, as the case may be, under applicable Texas or Maryland law, as the case may be, (B) prior to receipt taking such action, ACT or ICH, as the case may be, receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity and (C) the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the applicable Board of Directors of Consumers determines concludes in good faith, after consultation with outside counselreceiving advice from its independent financial advisor, that it the Acquisition Proposal is necessary a Superior Proposal. The party hereto receiving such unsolicited Acquisition Proposal shall provide immediate oral and written notice to do so in order the other party hereto of (a) the receipt of any such Acquisition Proposal or any inquiry which could reasonably be expected to comply with lead to any Acquisition Proposal, (b) the material terms and conditions of such Acquisition Proposal or inquiry, (c) the identity of such person or entity making any such Acquisition Proposal or inquiry, (d) its intention to furnish information to, or enter into discussions or negotiations with, such person or entity and (e) subject to the fiduciary duties to Consumers' shareholders of its Board under applicable law, Consumers may, in response shall continue to a Superior keep such other party informed of the status and details of any such Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposalinquiry. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, bona fide proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.,
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall Allied will not, nor shall it authorize and will not permit or permit cause any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers of its Subsidiaries or any of the officers or directors of it or its subsidiaries Subsidiaries to, and shall direct its and its Subsidiaries' Representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise knowingly facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal. Allied will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or may reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent Allied or its Board of Directors from (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal; (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the Members of Allied, at any time prior if and only to receipt of the approval of the Merger by the holders of the Consumers Common Shares extent that, (the "Consumers Applicable Period"i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers Allied determines in good faith, after consultation with outside counsel, faith that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision the failure to take such action is reasonably likely to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making result in a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) breach of such Board's fiduciary duties under, or otherwise violate, applicable Law; and (bii) participate in discussions each case referred to in clause (B) or negotiations regarding (C) above, the Board of Directors of Allied determines in good faith that such Acquisition Proposal may be a Superior Proposal. For purposes of this AgreementAllied will immediately cease and cause to be terminated any existing activities, "Acquisition Proposal" means any inquiry, proposal discussions or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.negotiations
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) From the date hereof until the earlier of the Closing or the termination of the Agreement pursuant to Article 10, the Seller shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers of its Subsidiaries or any of its subsidiaries their respective Affiliates or Representatives to, directly or indirectly, indirectly (i) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal (as defined below) Proposal, or (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that ifthis Section 7.1(a) shall not prohibit the Seller from entering into a confidentiality agreement or discussions or negotiations with, at or disclosing the terms of this Agreement, including the Purchase Price, to any time prior Person in response to receipt a bona fide unsolicited written Acquisition Proposal submitted by such Person (and not withdrawn), and, upon the request of the approval Seller, the Purchaser shall, and it shall cause its officers and Representatives to, cooperate and respond accurately, promptly and fully to any inquiries or requests for documents by such Person, if (A) none of the Merger by the holders Seller, any of its Subsidiaries or any of their respective Affiliates or Representatives shall have violated any of the Consumers Common Shares restrictions set forth in this Section 7.1, (B) the "Consumers Applicable Period"), the Board Seller’s board of Directors of Consumers directors determines in good faith, faith (after consultation with its outside legal counsel), that it there is necessary a substantial likelihood the failure to do so take such action would be inconsistent with its fiduciary duties under Applicable Law, and (C) (1) at least two business days prior to furnishing (or requesting the Purchaser to furnish) any such information to, or entering into discussions or negotiations with, such Person, the Seller gives the Purchaser written notice of the identity of such Person and of the Seller’s intention to furnish information (or request Purchaser to furnish) to, or enter into discussions or negotiations with, such Person, and (2) the Purchaser receives from such Person an executed confidentiality agreement containing terms no less favorable to the Purchaser than the least favorable confidentiality agreement entered into by the Purchaser with any other potential purchaser of the Shares (such a Acquisition Proposal in order compliance with the foregoing provision is referred to comply herein as a “Qualified Transaction Proposal”). In addition to the foregoing obligations of the Seller, as promptly as practicable, and in any event within one business day after any of the executive officers of the Seller becomes aware thereof, the Seller shall advise the Purchaser of any request received by the Seller for information which the Seller reasonably believes could lead to a Qualified Transaction Proposal, the material terms and conditions of such request or Qualified Transaction Proposal, and the identity of the Person making any such request or Qualified Transaction Proposal. The Seller shall keep the Purchaser informed promptly of material amendments or modifications to any such request or Qualified Transaction Proposal. All such disclosures shall be subject to a confidentiality agreement dated April 12, 2006 between the Purchaser and the Seller.
(b) Except as permitted by this Section 7.1(b), neither the Seller’s board of directors nor any committee thereof shall (i) withdraw or modify its approval of this Agreement and the sale of the Shares and the Call Option Shares, (ii) approve or recommend to the Seller’s stockholders any Qualified Transaction Proposal, or (iii) cause the Seller or any of its Subsidiaries to enter into an agreement with respect to any Qualified Transaction Proposal, provided that the foregoing restrictions shall not apply if the Seller’s board of directors determines in good faith that (A) such Qualified Transaction Proposal is a Superior Proposal and (B) (after consulting with its outside legal counsel) the failure to take such action would be inconsistent with its fiduciary duties to Consumers' shareholders the Seller’s stockholders under applicable lawApplicable Law.
(c) Notwithstanding any other provision of this Agreement to the contrary, Consumers may, if the Seller’s board of directors determines in response to good faith that a Qualified Transaction Proposal is a Superior Proposal in conformity with Section 7.1(b), the Seller’s board of directors may terminate this Agreement subject to the Seller’s obligation under Section 10.3 to reimburse the Purchaser for its actual out-of-pocket expenses, up to a maximum of $1,300,000.
(as defined d) The Seller shall, and shall cause its Subsidiaries and their respective Representatives to, immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will use their respective reasonable best efforts to enforce any confidentiality or similar agreement relating to any such Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 4.7.1) which was not solicited 7.1, by it the Seller, any of the Seller’s Subsidiaries or which did not otherwise result from any of their respective Affiliates or Representatives shall be deemed to be a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (7.1 by the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSeller.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) During the period from the date of this Agreement and until the earlier of the Closing or the termination of this Agreement, nor shall it authorize or permit none of MIMI, any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers of the Companies or any of its subsidiaries their respective officers, directors, employees, representatives and agents shall, and MIMI and Newco shall use commercially reasonable efforts to cause any of the Company's Affiliates not to, directly or indirectly, solicit or knowingly encourage any proposals or offers from any corporation, partnership, person or other entity or group other than the Buyer or an Affiliate of the Buyer (ia "Third Party") solicitconcerning any acquisition, initiate consolidation, tender or encourage the submission exchange offer, merger, business combination, sale of securities or substantial assets of any Acquisition Proposal of the Companies or any other transaction that would result in the sale of all or any of the Companies or their respective businesses (as defined belowother than sales of assets in the Ordinary Course of Business) or that would otherwise adversely affect the ability of Parent, MIMI, Newco and Buyer to consummate the transactions contemplated by this Agreement (iiany such transaction being referred to herein as an "Acquisition Proposal").
(b) participate MIMI and Newco will promptly (and in any discussions or negotiations regardingno event later than 36 hours after receipt) notify Buyer in writing of, or furnish and will disclose to any person any information with respect toBuyer all material details (including, or take any other action to facilitate any inquiries or without limitation, the identity of the Third Party making of any proposal that constitutes, or may reasonably be expected to lead tosuch Acquisition Proposal) of, any Acquisition Proposal; provided, howeverwhether oral or written, that ifany of MIMI, at any time Company or any of their respective Affiliates, officers, directors, employees, representatives or agents receives after the date of this Agreement.
(c) MIMI, the Companies, and their respective Affiliates, officers, directors, employees, representatives and agents shall not, and shall not resolve to (i) furnish or cause to be furnished information concerning the Companies' businesses, properties or assets to a Third Party, or enter into, participate in, conduct or engage in discussions or negotiations with such Third Party, (ii) take any position with respect to an Acquisition Proposal in the Proxy Statement or otherwise in accordance with Rules 14d-9 and 14e-2 under the Exchange Act in any manner adverse to Buyer or the transactions contemplated by this Agreement or make disclosure to the Stockholders regarding such Acquisition Proposal, (iii) not recommend, or withdraw its approval or recommendation of, the Pre-Closing Dissolution, (iv) modify or qualify such approval or recommendation in a manner adverse to Buyer, (v) approve or recommend any proposed Acquisition Proposal or (vi) cause or allow any Company to enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to an Acquisition Proposal. Notwithstanding the foregoing, if prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), Stockholders' Meeting the Board of Directors of Consumers MIMI determines in good faith, after it has received a Qualified Acquisition Proposal and after consultation with outside its financial advisors and -39- legal counsel, that it is necessary to do so in order must take such action to comply with its fiduciary duties to Consumers' shareholders the Stockholders under applicable lawApplicable Law, Consumers maythen MIMI's Board of Directors may (subject to this sentence) take any of the actions contemplated by clauses (i) through (v) (but not any of the actions contemplated by clause (vi)) of the immediately preceding sentence (a "Subsequent Action"), but only if (1) in connection with any Subsequent Action contemplated by clause (i) above, the relevant Third Party executes a confidentiality agreement on terms no less favorable in the aggregate to the Company than those in the Confidentiality Agreement, (2) MIMI delivers to Buyer a written notice advising Buyer that MIMI's Board of Directors has received a Qualified Acquisition Proposal and specifying the material terms and conditions of such Qualified Acquisition Proposal, identifying the person making such Qualified Acquisition Proposal and stating that, not earlier than the second Business Day following receipt by Buyer of such notice, MIMI's Board of Directors intends to take a Subsequent Action; (3) during such two Business Day period, MIMI shall have considered, and shall have caused its Affiliates, officers, directors, employees, representatives and agents to have considered, in response to a Superior Proposal (as defined good faith any adjustments in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach the terms and conditions of this Section 4.6Agreement that Buyer may propose; and (4) Buyer does not, within such two Business Day period, offer to make such adjustments in the terms and subject to providing prior written notice conditions of this Agreement or other proposals regarding MIMI such that MIMI's Board of Directors determines in its decision to take such action to PSC good faith judgment (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside financial advisors and legal counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of that this Agreement, together with such adjustments offered by Buyer, is at least as favorable to the Stockholders as such Qualified Acquisition Proposal. As used herein, "Qualified Acquisition Proposal" means any inquiry, proposal a bona fide written Acquisition Proposal or offer from any person relating Acquisition Proposals to any direct acquire all or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more substantially all of the net revenues, net income capital stock or assets of the assets (including equity securities) of Consumers and its subsidiaries, taken Companies as a wholewhole on terms and subject to conditions that the Company's Board of Directors believes in good faith, taking into account all of the terms and conditions of such Acquisition Proposal or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owningAcquisition Proposals, operating or controlling a Material Businesswould, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryconsummated, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than be superior to the transactions contemplated by this AgreementAgreement and in the best interests of the Stockholders of MIMI.
(d) None of the Companies shall waive any provision of any confidentiality or similar Contract relating to an actual or possible Acquisition Proposal (whether entered into prior to the date hereof or hereafter) without the advance written consent of Buyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Waddell & Reed Financial Inc)
Acquisition Proposals. 4.6.1 Consumers Subject to the limitations and covenants on Schedule B hereto,
(a) Stockholder, shall, and, if applicable, shall cause its subsidiaries, and its and their officers, directors, employees, financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents retained by Stockholder or any of its subsidiaries (collectively, “Representatives”) to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that could reasonably be expected to lead to, any Company Takeover Proposal.
(b) Stockholder, shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries and its and their Representatives to, directly or indirectly, indirectly (i) solicit, initiate or encourage (including by way of furnishing information) or take any other action designed to facilitate, any inquiries or the submission making of any Acquisition Proposal (as defined below) proposal that constitutes, or would be reasonably likely to lead to, a Company Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Company Takeover Proposal or enter into any agreement, arrangement or understanding requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by the Merger Agreement, or (iii) initiate or participate in any way in any discussions or negotiations regarding, or furnish or disclose to any person (other than a party to this Agreement) any information with respect to, or take any other action to facilitate or in furtherance of any inquiries inquires or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Acquisition Company Takeover Proposal; provided, however, that if, at .
(c) Stockholder shall promptly (but in any time prior to receipt event within one calendar day) advise Parent in writing of the approval receipt, directly or indirectly, of any inquiries, requests, discussions, negotiations or proposals relating to a Company Takeover Proposal, or any request for nonpublic information relating to any of the Merger Company Entities by the holders of the Consumers Common Shares (the "Consumers Applicable Period")any person that informs Stockholder or its Representatives that such person is considering making, the Board of Directors of Consumers determines in good faithor has made, after consultation with outside counsela Company Takeover Proposal, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result an inquiry from a breach of this Section 4.6, and subject person seeking to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in have discussions or negotiations regarding such Superior relating to a possible Company Takeover Proposal. For purposes Such notice shall be made orally and confirmed in writing, and shall indicate the specific terms and conditions thereof and the identity of this Agreement, "Acquisition Proposal" means the other party or parties involved and promptly furnish to Parent a copy of any such written inquiry, request or proposal and copies of any information provided to or offer from by any person third party relating to any direct or indirect acquisition or purchase of a business (a "Material Business") thereto. Stockholder agrees that constitutes 15% or more it shall keep Parent fully informed of the net revenues, net income or the assets status and details (including equity securitiesamendments and proposed amendments) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryrequest or information requested of Stockholder, including by providing a copy of all material documentation or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementcorrespondence relating thereto.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall Allied will not, nor and will not permit or cause any of its Subsidiaries or any of the officers or directors of it or its Subsidiaries to, and shall it authorize or permit any officerdirect its and its Subsidiaries' employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of 15 percent or more of the assets or any equity securities of, Allied or any of its Subsidiaries, or any other business combination (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). Allied will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, nothing contained in this Agreement shall prevent Allied 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 receipt of after 180 days from the approval of date hereof if the Merger shall not by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.date have
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers
(a) The Company shall, and shall cause its Affiliates, Subsidiaries, and its and each of their respective officers, directors, employees, consultants, financial advisors, attorneys, accountants and other advisors, representatives and agents (collectively, "Representatives") to, immediately cease and cause to be immediately terminated any discussions or negotiations with any parties that may be ongoing with respect to, or that are intended to or could reasonably be expected to lead to, a Takeover Proposal. The Company shall not, nor and shall it authorize or permit any officercause its Affiliates, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of Subsidiaries and its subsidiaries and their respective Representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate or initiate, encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate (including by way of furnishing or disclosing information) any inquiries Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal (including any letter of intent, memorandum of understanding or agreement in principle) or enter into any agreement, arrangement or understanding (including any letter of intent, memorandum of understanding or agreement in principle) which requires, or is intended to or which could reasonably be expected to result in, the abandonment, termination or the making failure to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Person (other than a party to this Agreement) any information with respect to any Takeover Proposal or (iv) grant any waiver or release under, or fail to enforce, any standstill or any similar agreement with respect to any class of the Company's equity securities; provided, however, that at any proposal time prior to the adoption of this Agreement by the Required Company Stockholders, in response to a bona fide written unsolicited Takeover Proposal received after the date hereof that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that such Takeover Proposal constitutes, or may would reasonably be expected to lead to, a Superior Proposal, and which Takeover Proposal was not, directly or indirectly, the result of a breach of this Section 5.5, the Company may, if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.5(b), (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement and containing a standstill agreement; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person, and (B) participate in discussions or negotiations with the Person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.
(b) Neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to Parent), or propose to withdraw (or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board of, this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose to recommend, adopt or approve, any Takeover Proposal (any action described in this clause (i) being referred to as a "Company Adverse Recommendation Change") or (ii) approve or recommend, or propose to approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in and as permitted by Section 5.5(a)) (an "Acquisition ProposalAgreement") or which is intended to or which could reasonably be expected to result in the abandonment, termination or failure to consummate the Merger or any other transaction contemplated by this Agreement. Notwithstanding the foregoing or Section 5.5(b) and (c), at any time prior to the adoption of this Agreement by the Required Company Stockholders, the Company Board may make a Company Adverse Recommendation Change(and not solicit proxies) in response to a Superior Proposal if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that if, at any time prior to receipt of (i) no such Company Adverse Recommendation Change may be made if the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order Company failed to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.65.5, and subject to providing prior (ii) no such Company Adverse Recommendation Change shall be made until after the third (3rd) Business Day following Parent's receipt of written notice (a "Notice of its decision Adverse Recommendation") from the Company advising Parent that the Company Board intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board (it being understood and agreed that any amendment to PSC the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new three (the "Consumers Notice"3) Business Day period) and compliance representing that the Company has complied with this Section 4.6.2
5.5, (aiii) furnish information during such three (3) Business Day period, the Company shall negotiate with respect Parent in good faith to Consumers make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its subsidiaries recommendation of this Agreement and not make a Company Adverse Recommendation Change and (iv) the Company shall not make a Company Adverse Recommendation Change if, prior to any person making the expiration of such three (3) Business Day period, Parent makes a Superior Proposal pursuant proposal to a customary confidentiality agreement adjust the terms and conditions of this Agreement that the Company Board determines in good faith (as determined by Consumers after consultation with its outside counselfinancial advisors) to be at least as favorable as the Superior Proposal.
(c) The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (b) participate of this Section 5.5, promptly on the date of receipt thereof (and in any event, within 24 hours), the Company shall advise Parent orally and in writing of any request for information or any Takeover Proposal, or any inquiry, discussions or negotiations regarding with respect to any Takeover Proposal and the terms and conditions of such request, Takeover Proposal, inquiry, discussions or negotiations (including the identity of the Person making such Takeover Proposal) and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Person or group making any such request, Takeover Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company agrees that it shall timely keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, Takeover Proposal or inquiry and keep Parent timely and fully informed as to the details of any information requested of or provided by the Company and as to the details of all discussions or negotiations with respect to any such request, Takeover Proposal or inquiry. In any event, the Company shall within 24 hours notify Parent orally and in writing of the occurrence and substance of any material developments, discussions and negotiations or material amendments or proposed material amendments thereto and will within 24 hours notify Parent orally and in writing of any determination by the Company Board that such Takeover Proposal constitutes a Superior Proposal. For purposes of .
(d) Nothing contained in this AgreementSection 5.5 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act; provided, "Acquisition Proposal" means any inquiryhowever, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of in no event shall the net revenues, net income Company or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeCompany Board or any committee thereof take, or 15% agree or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Businessresolve to take, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated action prohibited by this AgreementSection 5.5(b).
Appears in 1 contract
Samples: Merger Agreement
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that it and its subsidiaries shall not, nor and that it shall it authorize use its commercially reasonable efforts to ensure that none of its or permit any officerits subsidiaries' respective officers, director or employee ofdirectors, or any investment bankerbankers, attorneyfinancial advisors, attorneys, accountants, consultants or other advisor agents, advisors or representative ofrepresentatives (collectively, Consumers or any of its subsidiaries tothe "Company Representatives") shall, directly or indirectly, take any of the following actions:
(i) initiate, solicit, initiate encourage or encourage knowingly facilitate any inquiry, proposal or offer, or the making, submission or reaffirmation of any inquiry, proposal or offer (including any proposal or offer to the Company's stockholders), that constitutes or would reasonably be expected to lead to an Acquisition Proposal (as defined below) or );
(ii) participate engage in any negotiations or discussions or negotiations regardingconcerning, or furnish provide access to any properties, books and records, or any confidential information or data, of the Company or any of its subsidiaries to any person relating to or in connection with, any information Acquisition Proposal;
(iii) take any action to render the Company Rights inapplicable to any Acquisition Proposal or the transactions contemplated thereby, exempt or exclude any person from the applicability of the Company Rights in connection with respect toany Acquisition Proposal or the transactions contemplated thereby or, other than as contemplated by this Agreement in connection with the Merger, allow the Company Rights to expire prior to the expiration date, or take any other action to facilitate exempt any inquiries person (other than Parent or its affiliates) from the making restrictions on "business combinations", "control share acquisitions" or "take-over bids" contained in Chapters 110F, 110D or 110C of the Massachusetts General Laws, respectively, or otherwise cause such restrictions not to apply; or
(iv) waive, terminate, modify or fail to enforce any provision of any proposal that constitutes, contractual "standstill" or may reasonably be expected to lead to, similar obligation of any Acquisition Proposalperson (other than Parent or its affiliates); provided, however, that, if requested to do so by a third party who has contacted the Company to inform it that ifit desires to make an unsolicited bona fide Acquisition Proposal, at any time prior but would be unable to receipt do so without a waiver or modification of its existing standstill provisions, the approval of the Merger by the holders of the Consumers Common Shares Company may waive, modify or fail to enforce such standstill provisions (the "Consumers Applicable Period"), A) if the Board of Directors of Consumers determines the Company shall have determined in good faith, after consultation with outside its legal counsel, that it is necessary failure to do so take such action would reasonably be expected to result in order to comply with a breach of its fiduciary duties to Consumers' shareholders stockholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6Law, and subject (B) solely to providing prior written notice the extent necessary and for the limited purpose of its decision permitting such third party to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "submit an unsolicited bona fide Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement
Acquisition Proposals. 4.6.1 Consumers Franklin agrees that it shall not, nor and that it shall it authorize or permit any officerdirect and use its reasonable best efforts to cause its directors, director or employee ofofficers, or any investment bankeremployees, attorney, or other advisor or representative of, Consumers or any of its subsidiaries agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving Franklin, or may reasonably be expected any purchase of all or substantially all of the assets of Franklin or more than 10% of the outstanding equity securities of Franklin (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). Franklin further agrees that it shall not, and that it shall direct and use its reasonable best efforts to cause its directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt of nothing contained in this Agreement shall prevent Franklin or the approval of the Merger by the holders of the Consumers Common Shares Franklin Board from (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply A) complying with its fiduciary duties to Consumers' shareholders disclosure obligations under applicable federal or state law, Consumers may, ; (B) providing information in response to a Superior request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Franklin Board receives from the Person so requesting such information an executed confidentiality agreement; (as defined C) engaging in Section 4.7.1any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal or (D) which was not solicited by it recommending such an Acquisition Proposal to the stockholders of Franklin, if and only to the extent that, in each such case referred to in clause (B), (C) or which did not otherwise (D) above, (i) the Franklin Board determines in good faith (after receipt of a written opinion of outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the Franklin Board determines in good faith (after receipt of a written opinion of 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 proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to Franklin's stockholders from a breach financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Franklin in compliance with this Section 4.66.8 hereof and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a "Superior Proposal." Franklin agrees that it will immediately cease and cause to be terminated any existing activities, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance discussions or negotiations with Section 4.6.2
(a) furnish information any parties conducted heretofore with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in Acquisition Proposals. Franklin agrees that it will notify First Place if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementare sought to be initiated or continued with, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers Franklin or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) CVBG and 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 CVBG or any of its Subsidiaries) shall immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal, as defined below, and they will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which they are a party with respect to any Acquisition Proposal. From the acceptance of the offer letter dated December 20, 2006, through the Effective Time, CVBG shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officerof its or its Subsidiaries' directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative of, Consumers retained by it or any of its subsidiaries Subsidiaries to, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage the submission (including by way of any Acquisition Proposal (as defined below) furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action designed to facilitate or encourage any inquiries or the making of any proposal that constitutes, or may is reasonably be expected likely to lead to, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iii) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. Any violation of the foregoing restrictions by any representative of CVBG, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of such party or otherwise, shall be deemed to be a breach of this Agreement by CVBG.
(i) Notwithstanding the foregoing, the Board of Directors of CVBG shall be permitted, prior to its meeting of shareholders to be held pursuant to Section 6.3, to engage in discussions and negotiations with, or provide any nonpublic information or data to, any person in response to an unsolicited bona fide written Acquisition Proposal by such person made after the date of this Agreement which its Board of Directors, upon written advice from outside legal counsel to CVBG that failure to consider such deemed Superior Proposal could reasonably be expected to constitute a breach of fiduciary duties to CVBG shareholders under Tennessee law and subject to compliance with the other terms of this Section 6.10.
(ii) CVBG shall notify GCBS promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, or any request for nonpublic information relating to CVBG or any of its Subsidiaries by any person that informs CVBG or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal, or any inquiry from any person seeking to have discussions or negotiations with such party relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the person making the Acquisition Proposal, inquiry or request and the material terms and conditions of any inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). CVBG shall also promptly, and in any event within 24 hours, notify GCBS, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any person in accordance with this Section 6.10(b) and keep GCBS informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto..
(iii) Nothing contained in this Section 6.10 shall prohibit CVBG or its Subsidiaries from taking and disclosing to its shareholders a position required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that if, at compliance with such rules shall not in any time prior way limit or modify the effect that any action taken pursuant to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders such rules has under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach any other provision of this Agreement.
(c) Nothing in this Section 4.6, and subject 6.10 shall (x) permit CVBG to providing prior written notice terminate this Agreement or (y) affect any other obligation of CVBG under this Agreement. CVBG shall not submit to the vote of its decision to take such action to PSC (shareholders any Acquisition Proposal other than the "Consumers Notice") and compliance with Section 4.6.2Merger.
(ad) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, the term "Acquisition Proposal" means any inquiry, proposal or offer offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to do any of the foregoing from any person relating to any (w) direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more a substantial portion of the net revenues, net income or assets of CVBG or any of its significant subsidiaries (as defined under Regulation S-X of the assets SEC), (including x) direct or indirect acquisition or purchase of any class of equity securities) of Consumers and its subsidiaries, taken as a whole, or 15securities representing 10% or more of any class the voting power of voting securities of Consumers CVBG or any of its subsidiaries owningsignificant subsidiaries, operating or controlling a Material Business, any (y) tender offer or exchange offer that if consummated would result in any person beneficially owning 1510% or more of any class the voting power of voting securities of Consumers or any such subsidiaryCVBG, or any (z) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers CVBG or any such subsidiaryof its Subsidiaries, in each case other than the transactions contemplated by this Agreement.
(e) For purposes of this Agreement, "Superior Proposal" means a bona fide written Acquisition Proposal which the Board of Directors of CVBG concludes in good faith, upon the written advice of its financial advisors and legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including any break-up fees, expense reimbursement provisions and conditions to consummation), (i) is more favorable to the shareholders of CVBG from a financial point of view, than the transactions contemplated by this Agreement and (ii) is fully financed or reasonably capable of being fully financed, reasonably likely to receive all required governmental approvals on a timely basis and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of "Superior Proposal," the term Acquisition Proposal shall have the meaning assigned to such term in Section 6.10(d) except that the reference to "10% or more" in the definition of "Acquisition Proposal" shall be deemed to be a reference to "a majority" and "Acquisition Proposal" shall only be deemed to refer to a transaction involving CVBG.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or 10% or more of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any 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 its board of directors from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (as defined in Section 9.7), except that such confidentiality agreement may provide that such Person shall not be prohibited from submitting an Acquisition Proposal to the board of directors of the Company; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending such an Acquisition Proposal to the stockholders 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 board of directors of the Company determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) in each case referred to in clause (C) or (D) above, the board of directors of the Company determines in good faith (after 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 proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any of its Subsidiaries to return all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(b) Notwithstanding anything in this Section 6.2 to the contrary, if, at any time prior to receipt of obtaining the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")Company Requisite Vote, the Board Company's board of Directors of Consumers directors determines in good faith, after consultation with on the basis of the advice of its financial advisors and outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which unsolicited and that did not otherwise result from a breach of Section 6.2(a), that such proposal is a Superior Proposal, the Company or its board of directors may terminate this Agreement if, and only if, the Company shall substantially concurrently with such termination enter into a definitive agreement containing the terms of a Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to this sentence, and any purported termination pursuant to this sentence shall be void and of no force or effect, unless the Company shall have complied with (i) all the provisions of this Section 4.66.2, including the notification provisions in this Section 6.2, (ii) the following proviso, and subject (iii) all applicable requirements of Section 8.3, including the payment of the termination fee described in Section 8.5(b) prior to providing prior or concurrently with such termination; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to this Section 6.2 until after five business days following Parent's receipt of written notice (a "Notice of its decision to take such action to PSC (the "Consumers NoticeSuperior Proposal") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making advising Parent that the Company's board of directors has received a Superior Proposal and that such board of directors will, subject to any action taken by Parent pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding this sentence, cause the Company to accept such Superior Proposal. For purposes , specifying the material terms and conditions of this Agreement, "Acquisition Proposal" means the Superior Proposal and identifying the person making such Superior Proposal (it being understood and agreed that any inquiry, proposal amendment to the price or offer from any person relating to any direct or indirect acquisition or purchase other material term of a Superior Proposal shall require an additional Notice of Superior Proposal and a new five business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementday period).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall notPrior to the Company Merger Effective Time, Grove agrees that:
(a) neither it nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries tothe Grove Subsidiaries shall initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making or implementation of any proposal that constitutesor offer (including, or may reasonably be expected to lead towithout limitation, any Acquisition Proposal; provided, however, that if, at proposal or offer to any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' their respective shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1or limited partners) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryacquisition, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuestender offer, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergeroffer, consolidation, business combination, recapitalization, liquidation, dissolution sale of assets or similar transaction involving Consumers all or any such subsidiarysignificant portion of the assets or any equity securities of Grove or any of the Grove Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal;
(b) it will use its best efforts not to permit any of its officers, trust managers, employees, agents or financial advisors to engage in any of the activities described in Section 4.1(a);
(c) it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to in Section 4.1(b) of the obligations undertaken in this Section 4.1; and
(d) it will notify ERP as promptly as practicable if Grove receives any such inquiries or proposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with it; provided, however, that nothing contained in this Section 4.1 shall prohibit the Grove Board from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal, if, and only to the extent that (A) the Grove Board determines in good faith that failure to do so would create a reasonable probability of a breach of its duties to shareholders or Limited Partners imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Grove provides written notice to ERP to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which Grove determined in good faith was required to be executed in order for the Grove Board to comply with its duties to shareholders or Limited Partners imposed by law), Grove keeps ERP informed of the status of any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 4.1 shall (x) permit Grove to terminate this Agreement (except as specifically provided in Article 7 hereof), (y) permit Grove to enter into an agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, Grove shall not enter into an agreement with any Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form executed as provided above)) or (z) affect any other obligation of Grove under this Agreement; provided, however, that the Grove Board may approve and recommend a Superior Acquisition Proposal and, in connection therewith, withdraw or modify its approval or recommendation of this Agreement and the Mergers. As used herein, "Superior Acquisition Proposal" means a bona fide Acquisition Proposal made by a third party which a majority of the members of the Grove Board determines in good faith to be more favorable to Grove's shareholders and Limited Partners from a financial point of view than the Mergers and which the Grove Board determines is reasonably capable of being consummated.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall not, nor and shall it authorize or permit any officercause its Subsidiaries and use its reasonable best efforts to cause its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of 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 (as defined below) or (iiiii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regardingwith, or furnish to any person any information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person or (B) notify a person that has made or, to the knowledge of the Company, is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a); provided, howeverthat, that if, at any time prior to receipt of the approval of the Merger by the holders shareholders of the Consumers Common Shares (Company by the "Consumers Applicable Period")Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of Consumers determines the Company concludes in good faith, faith (after consultation with receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that it is necessary failure to do so in order to comply with take such actions would violate its fiduciary duties to Consumers' shareholders under applicable law; provided, Consumers mayfurther, in response that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have entered into a Superior Proposal (as defined in Section 4.7.1) confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which was confidentiality agreement shall not solicited by it or which did not otherwise result from a breach of this Section 4.6provide such person with any exclusive right to negotiate with the Company. The Company will, and subject will use its reasonable best efforts to providing prior written notice of cause its decision Representatives to, immediately cease and cause to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to be terminated any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in activities, discussions or negotiations regarding such Superior Proposal. For purposes conducted before the date of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from Agreement with any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.Purchaser with
Appears in 1 contract
Samples: Agreement and Plan of Merger (People's United Financial, Inc.)
Acquisition Proposals. 4.6.1 Consumers (a) Subject to the delivery of the financing commitments provided for under Sections 8.1(g) and (h), neither the Shareholder nor the Company nor any of their respective officers and directors has, and the Shareholder and the Company shall noteach direct and use their respective best efforts to cause their respective employees, nor shall it authorize or permit any officeragents and representatives (including without limitation, director or employee of, or any investment banker, attorneyattorney or accountant retained by the Shareholder or the Company) not to, initiate, solicit or other advisor or representative of, Consumers or any of its subsidiaries toencourage, directly or indirectly, any proposal or offer to acquire all or any substantial part of the Company or any capital stock of the Company, whether by merger, purchase of assets, stock purchase or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transaction being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding any other provisions of this Agreement, in response to an unsolicited proposal or inquiry with respect to an Acquisition Transaction, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate Company may engage in any discussions or negotiations regardingregarding such proposal or inquiry with a third party who (without solicitation or initiation, directly or indirectly, by or with the Company, the Shareholder or any representative of the Company or the Shareholder after the date of this Agreement) seeks to initiate such discussions or negotiations and may negotiate with and furnish to any person any such third party information with respect toconcerning the Company and its business, or take any other action to facilitate any inquiries or the making of any proposal that constitutesproperties and assets, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")and only if, the Board of Directors of Consumers the Company determines in good faith, after consultation with based upon an opinion of outside legal counsel, that it is necessary a failure to do so furnish the information or participate in order to comply the discussions or negotiations could reasonably conflict with its the proper discharge of the fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2Company's directors.
(ac) furnish information with respect In the event the Company shall receive any proposal or inquiry of the type referred to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and in paragraph (b) participate in discussions above, it shall (i) immediately provide Purchaser a copy of all information provided to the third party, (ii) inform Purchaser that information is to be provided, that negotiations are to take place or negotiations regarding such Superior Proposal. For purposes of this Agreementthat an offer has been received, "Acquisition Proposal" means any inquiryas the case may be, proposal or offer from any person relating and (iii) furnish to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more Purchaser the identity of the net revenues, net income person receiving such information or the assets (including equity securities) proponent of Consumers and its subsidiariessuch offer, taken as if applicable, and, if an offer has been received, a whole, or 15% or more description of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementmaterial terms thereof.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) FCB will, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives (including Investment Banker) to, 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, FCB shall notnot terminate, nor shall it authorize amend, modify or permit waive any officer, director material provision of any confidentiality or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers similar agreement to which FCB or any of its subsidiaries Subsidiaries is a party (other than any involving MainSource).
(b) Except as permitted in this Section 5.06, FCB shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including Investment Banker) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or 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 with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the submission approval of any the Merger by FCB’s shareholders, if FCB receives a bona fide Acquisition Proposal that the FCB Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of FCB’s obligations under this Section 5.06, FCB may furnish, or cause to be furnished, non-public information with respect to FCB and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to MainSource 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 FCB 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 FCB’s shareholders under applicable law and (B) prior to taking such action, FCB has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(b) by any representative (including Investment Banker) of FCB or its Subsidiaries shall be a breach of this Section 5.06 by FCB.
(c) Neither the FCB 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 MainSource or propose to withdraw or modify in a manner adverse to MainSource (or take any action inconsistent with) the recommendation by the FCB Board of Directors or any such committee of this Agreement or the Merger, 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 (ii) participate cause or permit FCB or First Capital to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regardingother similar agreement (each, an “Acquisition Agreement”) constituting or furnish to any person any information with respect related to, or take which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)).
(d) Notwithstanding the foregoing, at any time prior to the special meeting of FCB’s shareholders to approve the Merger, the FCB Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change; provided, that the FCB 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 FCB under applicable Law, and provided, further, that the FCB Board of Directors may not effect such an Adverse Recommendation Change unless (A) the FCB Board shall have first provided prior written notice to MainSource (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 a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any amendment to the financial terms or any other action material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) MainSource does not make, within five business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the FCB Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to facilitate no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the FCB Board’s fiduciary duties to the shareholders of FCB under applicable law. FCB agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, FCB and its officers, directors and representatives shall negotiate in good faith with MainSource and its officers, directors, and representatives regarding any inquiries revisions to the terms of the transactions contemplated by this Agreement proposed by MainSource.
(e) In addition to the obligations of FCB set forth in paragraphs (a), (b) and (c) of this Section 5.06, FCB shall as promptly as possible, and in any event within two business days after FCB first obtains knowledge of the receipt thereof, advise MainSource orally and in writing of (i) any Acquisition Proposal or any request for information that FCB reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry FCB reasonably believes could lead to any Acquisition Proposal, 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 making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to FCB any material change, modification or development to a previously made offer or letter of intent or any other material development occurs, FCB (or its outside counsel) shall (A) advise and confer with MainSource (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 material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide MainSource with true, correct and complete copies of any document or communication related thereto.
(f) Nothing contained in this Section 5.06 shall prohibit FCB 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, in the good faith judgment of the FCB 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 FCB’s obligations under applicable law.
(g) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal that constitutesor offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or may that could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase purchase, in one transaction or a series of a business transactions, of (a "Material Business"A) assets or businesses that constitutes 15constitute 20% or more of the net revenues, net income or the assets (including equity securities) of Consumers FCB and its subsidiariesSubsidiaries, taken as a whole, or 15(B) 20% or more of any class of voting equity securities of Consumers FCB or any of its subsidiaries owning, operating or controlling a Material Business, Subsidiaries; (ii) any tender offer or exchange offer that that, if consummated consummated, would result in any person Person beneficially owning 1520% or more of any class of voting equity securities of Consumers FCB or any such subsidiary, of its Subsidiaries; or (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution dissolution, joint venture, binding share exchange or similar transaction involving Consumers FCB, First Capital or any such subsidiaryof its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 20% or more of any class of equity securities of FCB, First Capital, or any of FCB’s other than the transactions contemplated by Subsidiaries or of any resulting parent company of FCB or First Capital. For purposes of this AgreementSection 5.06 only, 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 1 contract
Acquisition Proposals. 4.6.1 Consumers shall notThe Company agrees that it and its Subsidiaries, nor shall it authorize or permit any officerofficers, director or employee ofdirectors, or employees, agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers or any of its subsidiaries toaccountant retained by it) shall not, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise 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 if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information offer with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryreorganization, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers involving, or any purchase of any substantial portion of the assets of, or any equity securities of, or any transaction that would involve the transfer or potential transfer of control of, the Company (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") and has terminated any discussions or negotiations with, and the provision of information or data to, any Person (other than Parent) respecting an Acquisition Proposal. The Company further agrees that it and its Subsidiaries, officers, directors, employees, agents and representatives (including any investment banker, attorney or accountant retained by it) shall not, directly or indirectly, provide any confidential information or data to any Person relating to or in contemplation of an Acquisition Proposal or engage in any negotiations or discussions relating to or in contemplation of an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (a) complying with Rule 14e-2 promulgated under the Exchange Act with regard to any Acquisition Proposal; and (b) if any only to the extent that the Board of Directors of the Company concludes in good faith (after having consulted with and considered the advice of outside legal counsel) that such Acquisition Proposal would, if consummated, result in a transaction more favorable to the Company shareholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), until the Required Company Vote has been obtained, the Company may furnish or cause to be furnished confidential information or data and may participate in such negotiations and discussions but only if (i) the Company is not then in breach of its obligations under this Section, (ii) (and only to the extent that) the Board of Directors of the Company concludes in good faith (after having consulted with and considered the advice of outside legal counsel) that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable law and (iii) confidentiality arrangements on terms no less beneficial to the Company as those entered into by Parent are entered into with respect thereto. The Company will notify Parent immediately if any inquiries, proposals or offers respecting an Acquisition Proposal are received by, any such information or data is requested from, or any such subsidiarydiscussions or negotiations are sought to be initiated or continued with, other than it or any such Persons indicating, in connection with such notice, the transactions contemplated name of such Person and the material terms and conditions of any proposals or offers, and shall keep Parent apprised with respect to the status and terms thereof. The Company also will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such Person by this Agreement.or on behalf of it or any of its Subsidiaries and will not waive any "standstill " provision of any such, or any other, 36
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) Prior to the Effective Time, nor shall it authorize the Company agrees that none of it, any of its Subsidiaries or permit any officer, director or employee ofAffiliates, or any investment bankerof the respective directors, attorneyofficers, employees, agents or other advisor or representative ofrepresentatives of the foregoing, Consumers or any of its subsidiaries towill, directly or indirectly, (i) solicit, initiate initiate, facilitate or actively encourage the submission (including by way of any Acquisition Proposal (as defined belowfurnishing or disclosing non-public information) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constituteswith 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 20% or more of the issued and outstanding capital stock of the Company, or the acquisition of all or any significant part of the assets or any capital stock of any Subsidiary of the Company (an "Acquisition Transaction") or (ii) negotiate or otherwise engage in discussions with any Person (other than Parent and its representatives) with respect to any Acquisition Transaction, or which may reasonably be expected to lead toto a proposal for an Acquisition Transaction, or enter into any agreement, arrangement or understanding with respect to any such Acquisition ProposalTransaction; provided, however, that ifthe Company may, at any time prior in response to receipt an unsolicited written proposal from a third party regarding a Superior Proposal (as hereinafter defined), furnish information to and engage in discussions and negotiations with such third party, but only if (A) the board of directors of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers Company determines in good faith, after consultation with its nationally recognized financial advisors and taking into account the advice of outside counsel, that it is necessary failing to do so take such action would result in order to comply with its a breach of the fiduciary duties to Consumers' shareholders of such board of directors under applicable lawLaw and (B) prior to providing any information with respect to the Company to any such Person, Consumers may, such Person executes a confidentiality agreement with the Company with terms and conditions no less restrictive than those set forth in response to a Superior Proposal the Confidentiality Agreement (as defined in below). It is understood and agreed, without limitation of the Company's obligations, that any violation of this Section 4.7.1) which was 2.2 by any director, officer, Affiliate, investment banker, financial advisor, attorney or other advisor or representative of the Company, whether or not solicited by it such Person is purporting to act on behalf of the Company, or which did not otherwise result from otherwise, shall be deemed to be a breach of this Section 4.62.2 by the Company.
(b) The Company agrees that, as of the date hereof, it, its Subsidiaries and Affiliates, and subject the respective directors, officers, employees, agents and representatives of the foregoing, shall immediately cease and cause to providing prior written notice of be terminated any existing activities, discussions or negotiations with any Person (other than Parent and its decision to take such action to PSC (the "Consumers Notice"representatives) and compliance with Section 4.6.2
(a) furnish information conducted heretofore with respect to Consumers any Acquisition Transaction. The Company agrees to promptly advise Parent of the existence of (i) any inquiries or proposals received by (or indicated to), any such information requested from, or any negotiations or discussions sought to be 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 subsidiaries representatives) with respect to an Acquisition Transaction, (ii) the terms thereof, including the identity of such third party and the terms of any person making a Superior Proposal pursuant financing arrangement or commitment in connection with such Acquisition Transaction, and to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions update on an ongoing basis or negotiations regarding such Superior Proposalupon Parent's reasonable request, the status thereof. For purposes of this AgreementAs used herein, "Acquisition Superior Proposal" means any inquirya bona fide, written and unsolicited proposal or offer from made by any person relating to any direct or indirect acquisition or purchase of a business Person (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers other than Parent or any of its subsidiaries owningSubsidiaries) with respect to an Acquisition Transaction (A) on terms the board of directors of the Company determines in good faith and in the exercise of reasonable judgment (taking into account the advice of the Company's nationally recognized financial advisor), operating or controlling to be (if consummated) at a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or higher price and more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other favorable to the Company and its Stockholders than the transactions contemplated hereby taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by this AgreementParent to amend the terms and conditions of the transactions contemplated hereby) and (iii) that is reasonably capable of being consummated in a timely manner, taking into account all financial, regulatory, legal and other aspects of such proposal.
Appears in 1 contract
Samples: Merger Agreement (Hoovers Inc)
Acquisition Proposals. 4.6.1 Consumers shall Allied will not, nor and will not permit --------------------- or cause any of its Subsidiaries or any of the officers or directors of it or its Subsidiaries to, and shall it authorize or permit any officerdirect its and its Subsidiaries' employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of 20 percent or more of the assets or any equity securities of, Allied or any Allied Subsidiaries (other than as set forth in Section 6.10 of the Allied Disclosure Letter), or any other business combination (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). Allied will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, nothing contained in -------- ------- this Agreement shall prevent Allied 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 receipt of the approval of the Merger by the holders of the Consumers payment for Common Shares pursuant to the Offer (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the "Consumers Applicable Period"Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on customary terms; (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the shareholders of Allied, if and only to the extent that, (i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers Allied determines in good faith, faith after consultation with outside counsel, legal counsel that it such action is reasonably likely to be necessary to do so in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable lawlaw and (ii) in the case referred to in clause (C) above, Consumers may, the Board of Directors of Allied determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) and (b) participate in discussions or negotiations regarding that such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating if accepted, is reasonably likely to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more be consummated, taking into account all legal, financial and regulatory aspects of the net revenuesproposal and the Person making the proposal and would, net income or the assets (including equity securities) of Consumers and its subsidiariesif consummated, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or a more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar favorable transaction involving Consumers or any such subsidiary, other than the transactions transaction contemplated by this Agreement, taking into account the long-term prospects and interests of Allied and its shareholders. Allied will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Allied agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.10. Allied will notify Nationwide immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Nationwide informed, on a reasonably current basis, on the status and terms of any such proposals or offers and the status of any such negotiations or discussions.
Appears in 1 contract
Samples: Merger Agreement (Allied Group Inc)
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that it has had --------------------- sufficient opportunity, and has taken advantage of such opportunity, to solicit other competing Acquisition Proposals (as defined below). In view of the foregoing, the Company agrees that neither it nor any of the Company Subsidiaries shall not, nor shall it authorize or permit any officerof its officers, director directors, employees, agents or employee ofrepresentatives (including, or without limitation, any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries to, the Company Subsidiaries) to directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal, tender offer or exchange offer to the Company's shareholders) for the acquisition of the Company or any of the Company Subsidiaries (whether by way of merger, consolidation, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets by any Person other than Xxxxxx and Merger Subsidiary (any such proposal or offer being hereinafter referred to as an "Acquisition ----------- Proposal") or engage in any negotiations concerning or provide any confidential -------- information or data to, or may reasonably be expected to lead tohave any discussions with, any Person relating to an Acquisition Proposal; provided, howeveror otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. The Company shall immediately cease and cause to be terminated any existing activities, that if, at discussions or negotiations with any time prior parties (other than Xxxxxx) conducted heretofore with respect to receipt any of the approval foregoing. The Company will take the necessary steps to inform promptly the appropriate individuals or entities referred to in the first sentence hereof of the Merger by obligations undertaken in this Section 5.5. The Company also agrees that it promptly shall request each other Person (other than Xxxxxx) that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the holders Company or any of the Consumers Common Shares Company Subsidiaries to return all confidential information heretofore furnished to such Person by or on behalf of the Company or any of the Company Subsidiaries and enforce any such confidentiality agreements.
(b) The Company shall notify Xxxxxx immediately of any communications received by, or any request for information from, the "Consumers Applicable Period")Company relating to a possible Acquisition Proposal, and the Company shall promptly (and in no event more than two days) thereafter provide to Xxxxxx in writing the details of, and copies of any written material reflecting, any such communication or request. In the event that the Company receives a bona fide Acquisition Proposal that is, in the reasonable good faith judgment of the Board of Directors of Consumers the Company, after consultation with the Company's financial advisors, financially more favorable to the Company's shareholders than the terms of the Merger (a "Competing Proposal"), then, notwithstanding Section 5.5(a), the Company may ------------------- provide information to and negotiate with the 41 party making the Competing Proposal, communicate the Competing Proposal to the Company's shareholders and make a recommendation in favor of the Competing Proposal if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that it is necessary such action or actions are required by reason of the fiduciary duties of the members of the Board of Directors of the Company to do the Company's shareholders under applicable law; provided, however, that the Company shall not enter into any written agreement relating to a Competing Proposal without first terminating this Agreement pursuant to Section 9.1 and paying to Xxxxxx the amounts required under Section 9.3. Until such termination of this Agreement, the Company shall advise Xxxxxx on a daily basis of all discussions and negotiations relating to a Competing Proposal and, promptly upon the Company's (or its representative's) receipt or delivery of any draft or definitive agreement relating to a Competing Proposal, the Company shall deliver a copy thereof to Xxxxxx. Nothing in this Section 5.5(b) shall limit Xxxxxx' right or ability to seek equitable or injunctive relief in enforcing this Agreement.
(c) Nothing contained in this Agreement shall prohibit the Company from making any disclosure to the Company's shareholders if, in the opinion of the Board of Directors of the Company, after consultation with outside legal counsel, failure so in order to comply disclose would be inconsistent with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementCompany's shareholders.
Appears in 1 contract
Samples: Merger Agreement (Jacobs Engineering Group Inc /De/)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that (i) it and its officers and directors shall not, nor and (ii) it shall it authorize or permit any officeruse commercially reasonable efforts to ensure that its representatives shall not, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries to, in each case (A) directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to the acquisition, including by way of a tender offer, exchange offer, merger, consolidation or other business combination, of (x) an equity interest representing a 10% or greater economic or voting interest in the Company, or may reasonably be expected (y) the assets, securities or other ownership interests of or in the Company representing 10% or more of the consolidated assets of the Company, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to lead as an (“Acquisition Proposal“), or (B) directly or indirectly, engage in any negotiations concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to, an Acquisition Proposal; provided, however, that ifthe Company and its representatives may, at any time prior in response to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), a written Acquisition Proposal that the Board of Directors of Consumers the Company determines, in good faith, after consultation with its financial advisors, constitutes, a Superior Proposal, and which Acquisition Proposal did not result from a material breach of this Section 6.4(a), (x) provide access or furnish information with respect to the Company to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) engage in discussions or negotiations with the Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company to withhold information where such disclosure would contravene any Law, the Company shall promptly provide to Parent any non-public information that is provided to the Person making such Acquisition Proposal or its representatives that was not previously provided to Parent or Merger Sub. The Company will, and will cause its agents and representatives to, promptly cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company shall also promptly (within two (2) Business Days) notify Parent of the receipt of any Acquisition Proposal after the date hereof, which notice shall include the identity of the Person making such Acquisition Proposal and the material terms and conditions thereof, and will keep Parent apprised of any related material developments, discussions and negotiations related thereto. For purposes of this Agreement, the term “Superior Proposal“ means any offer made by a third party that the Board of Directors of the Company reasonably determines to be bona fide for a transaction that (a) if consummated, would result in such third party (or in the case of a direct merger between such third party and the Company, the stockholders of such third party) acquiring, directly or indirectly, more than 50% of the voting power of the Company Common Stock (or, in the case of a direct merger, the common stock of the resulting company) or all or substantially all the consolidated assets of the Company and its subsidiaries for consideration consisting of consideration payable to holders of shares of Company Common Stock that the Board of Directors of the Company determines in good faith, after consultation with outside counselits financial advisors, that it to be more favorable from a financial point of view to holders of Company Common Stock than the Merger taking into account the Termination Fee, and is necessary reasonably likely to do so be consummated in order to comply accordance with its fiduciary duties terms, taking into account all financial, regulatory, legal and other aspects of such offer and transaction (including the likelihood of completion) and any changes to Consumers' shareholders under applicable law, Consumers may, the terms of this Agreement proposed by Parent in response to a such Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementotherwise.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall, and shall notdirect and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other advisor or representative of, Consumers retained by the Company or any of its subsidiaries Subsidiaries) to, immediately cease and cause to be terminated any activities, discussions, or negotiations with any Person other than Reliant and Reliant Bank with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and cause its 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 First Advantage Parties or any of their respective 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 and the termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and use its best efforts to cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by the Company or any of its Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regardinginitiate, or furnish to any person any knowingly encourage (including by way of furnishing information with respect toor assistance), or take any other action to knowingly facilitate or that could reasonably be expected to result in, any inquiries or discussions regarding, or the making of any proposal or offer that constitutes, constitutes or may could reasonably be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Company or any of its Subsidiaries to any Person other than Reliant and Reliant Bank relating to or in connection with any Acquisition Proposal or any inquiry or indication of interest that could reasonably 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 Reliant and Reliant Bank, 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 Company to abandon, terminate, or fail to consummate the transactions contemplated by this Agreement, or propose to do any of the foregoing; or (v) subject to the Company’s rights under Section 7.7, make or authorize any statement, recommendation, or solicitation in support of any Acquisition Proposal; provided, however, that if, at any time prior to receipt the date the shareholders of Company approve this Agreement, if the approval Company’s board of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers directors determines in good faith, after consultation with its outside counsellegal and financial advisors, that it is necessary the failure to do so in order to comply would be inconsistent with its fiduciary duties to Consumers' shareholders under applicable lawLaw, Consumers the Company may, in response to a Superior bona fide, written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach in violation of this Section 4.67.1 that the Company’s board of directors determines in good faith constitutes or is reasonably likely to result in a Superior Proposal, and subject to providing 48 hours prior written notice of its their decision to take such action to PSC (Reliant and identifying the "Consumers Notice") Person making the Superior Proposal and all of the material terms and conditions of such Superior Proposal and compliance with Section 4.6.2
7.1(c), (aA) furnish information with respect to Consumers and its subsidiaries the First Advantage Parties to any person Person making a 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 (as determined by Consumers after consultation which confidentiality agreement shall not provide such Person the exclusive right to negotiate with its outside counselthe First Advantage Parties) and (bB) participate in discussions or negotiations with such Person regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating .
(c) In addition to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more the obligations of the net revenuesCompany set forth above, net income or the assets Company shall promptly (including equity securitiesorally within not more than 24 hours and in writing within two (2) calendar days) advise Reliant of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more Subsidiaries’ receipt of any class of voting securities of Consumers or any such subsidiaryAcquisition Proposal, or any mergerrequest for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal, consolidationand shall keep Reliant informed, business combinationon a prompt basis, recapitalizationof any material changes in the status thereof, liquidationincluding the material terms and conditions thereof and any changes thereto, dissolution or similar transaction involving Consumers and shall provide to Reliant any written materials received by the Company or any of its Subsidiaries in connection therewith. Additionally, the Company shall contemporaneously provide or make available to Reliant 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 Reliant.
(d) For the avoidance of doubt, the Company expressly agrees that any breach or violation of any provision of this Section 7.1 by any of its Subsidiaries or by any of its or its Subsidiaries’ Affiliates, directors, officers, employees, agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such subsidiaryParty or any of its Subsidiaries) shall be deemed a breach or violation of this Section 7.1 by the Company for which the Company shall be responsible.
(e) Nothing contained in this Section 7.1 shall prevent the Company or its board of directors, other than as applicable, from (i) taking the transactions contemplated actions permitted by Section 7.7(b) of this AgreementAgreement or (ii) informing any Person who submits an unsolicited Acquisition Proposal of the Company’s obligations pursuant to this Section 7.1.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company and each of its Subsidiaries shall, and shall notdirect and use its commercially reasonable efforts to cause its officers, nor shall it authorize directors, employees, agents and other representatives to, immediately cease any discussions, negotiations or permit contacts with any officer, director Persons that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). With respect to any Person or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers Persons with whom the Company or any of its subsidiaries toSubsidiaries has been discussing any Acquisition Proposal prior to the date hereof, the Company and its Subsidiaries shall promptly following the execution of this Agreement request each such Person who has heretofore entered into a confidentiality agreement with the Company or any of its Subsidiaries regarding an Acquisition Proposal to return to the Company all confidential information heretofore furnished to such Person or Persons by or on behalf of the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries shall, directly or indirectly, (i) through any officer, director, employee, agent or otherwise, solicit, initiate or encourage the submission of any Acquisition Proposal proposal or offer from any Person (as defined belowhereinafter defined) relating to any acquisition or purchase of all or (other than in the ordinary course of business) any portion of the assets of, or any equity interest in, the Company or any of its Subsidiaries or any recapitalization, business combination or similar transaction with the Company or any of its Subsidiaries (any communication with respect to the foregoing being an "ACQUISITION PROPOSAL") or (ii) participate in any discussions or negotiations regarding, or furnish to any person other Person any information with respect to, or take otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other action Person to facilitate do or seek any inquiries or of the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposalforegoing; provided, however, that ifthat, at any time prior to receipt the purchase of Shares by Acquisition Sub pursuant to the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")Offer, the Company may furnish information to, and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board of Directors of Consumers by majority vote determines in good faith, faith (i) after consultation with and receipt of advice from its outside legal counsel, that it is necessary failing to do so in order take such action may reasonably be determined to comply with its constitute a breach of the fiduciary duties to Consumers' shareholders of the Board under applicable law, Consumers may, in response to a Superior Proposal (ii) that commitments (financing and other) of substantially the same sufficiency and firmness as defined in Section 4.7.1) which was not solicited those then obtained by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information Purchaser have been obtained with respect to Consumers such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and its subsidiaries (iv) that such Acquisition Proposal is not subject to any person making regulatory approvals that could reasonably be expected to prevent consummation. In connection with the Acquisition Proposal of a Superior Proposal pursuant party that satisfies the criteria set forth in the proviso to the preceding sentence, the Company will enter into a customary confidentiality agreement (as determined with such party, which confidentiality agreement shall have terms and conditions that will be no less favorable to the Company than the terms and provisions relating to confidentiality contained in that certain Letter of Intent dated November 10, 1999 by Consumers after consultation with its outside counsel) and between the Company and Purchaser.
(b) participate in discussions or negotiations regarding such Superior Proposal. For purposes From and after the execution of this Agreement, "Acquisition Proposal" means the Company shall promptly give Purchaser written notice of the receipt, directly or indirectly, of any inquiryinquiries, proposal discussions, negotiations, or offer from any person proposals relating to any direct or indirect acquisition or purchase of a business an Acquisition Proposal (a "Material Business") that constitutes 15% or more including the material terms thereof and the identity of the net revenues, net income other party or the assets parties involved) and furnish to Purchaser as soon as reasonably practicable and in any event no later than 24 hours after such receipt an accurate description of all material terms (including equity securitiesany changes or adjustments to such terms as a result of negotiations or otherwise) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.written proposal. The Company shall promptly
Appears in 1 contract
Samples: Merger Agreement (Bolle Inc)
Acquisition Proposals. 4.6.1 Consumers Each party hereto agrees that neither it nor any of its subsidiaries nor any of its respective officers and directors or the officers and directors of its subsidiaries shall, and it shall noteach direct and use its best efforts to cause its employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorneyattorney or accountant retained by it or any of its subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer with respect to a merger, acquisition, consolidation, business combination, recapitalization or similar transaction involving, or other advisor any purchase of all or representative any significant portion of the assets or any equity securities of, Consumers it or any of its subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or provide any confidential information or data to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in have any discussions or engage in any negotiations regardingwith, or furnish to any person any information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal; provided, however, that ifthe Grace Board or the Sealed Air Board may furnish or cause to be furnished information (pursuant to confidentiality arrangements) and may participate in such discussions and negotiations directly or through its representatives if (i) the failure to provide such information or participate in such negotiations and discussions would, at any time prior to receipt in the opinion of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with its outside counsel, that it is necessary cause the members of the Grace Board or the Sealed Air Board, as the case may be, to do so in order to comply with its breach their fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to law or (ii) another person makes a Superior Proposal (as defined in Section 4.7.1) which written offer or written proposal that was not solicited by it or which and did not otherwise result from a breach of this Section 4.66.3 and which, based upon the identity of the person making such offer or proposal, the terms thereof and subject to providing prior written notice the availability of adequate financing therefor, the Grace Board or the Sealed Air Board, as the case may be, believes, in the good faith exercise of its decision to take such action to PSC (the "Consumers Notice") business judgment and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with based upon advice of its outside counsel) legal and financial advisors, could reasonably be expected to be consummated and represents a transaction more favorable to its shareholders than the Reorganization (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementa "Higher Offer"); provided further, however, that the term "Acquisition Proposal" means shall not include a proposal exclusively involving all or part of the stock or assets of New Grace and the New Grace Business so long as any such proposal (and the consummation thereof) will not adversely affect the transactions contemplated hereby. Grace or Sealed Air, as the case may be, shall notify the other party hereto as soon as practicable if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with it, which notice shall include the identity of the interested person and the material terms and conditions of any inquiry, proposal request for information, offer or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more proposal. Thereafter, the party giving the notice shall keep the other reasonably informed of the net revenues, net income or the assets (including equity securities) of Consumers status and its subsidiaries, taken as a whole, or 15% or more details of any class of voting securities of Consumers or any of its subsidiaries owningsuch inquiry, operating or controlling a Material Businessrequest for information, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% proposal, discussion or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementnegotiations.
Appears in 1 contract
Samples: Merger Agreement (Sealed Air Corp)
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that (i) it and its officers and directors shall not, nor (ii) its subsidiaries and its subsidiaries' officers and directors shall not, and (iii) it authorize shall use reasonable best efforts to ensure that its and its subsidiaries' investment bankers, financial advisors, attorneys, accountants, employees, consultants or permit other agents, advisors or representatives (collectively, "Representatives") shall not, (A) directly or indirectly, initiate, solicit or knowingly encourage or facilitate any officerinquiries or the making, director submission or employee ofreaffirmation of any proposal or offer with respect to a tender offer or exchange offer, merger, reorganization, share exchange, consolidation or other business combination involving the Company and its subsidiaries or any proposal or offer to acquire in any manner an equity interest representing a 20% or greater economic or voting interest in the Company, or any investment bankerthe assets, attorney, securities or other advisor ownership interests of or representative of, Consumers in the Company or any of its subsidiaries torepresenting 20% or more of the consolidated assets of the Company and its subsidiaries, in each case other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or (B) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any person relating to an Acquisition Proposal. Subject to Section 6.5(b), neither the Company nor its Board of Directors or any committee thereof shall recommend to its stockholders any Acquisition Proposal or approve or enter any agreement with respect to an Acquisition Proposal. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) solicit, initiate taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or encourage any similar communication to stockholders in connection with the submission making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to an Acquisition Proposal (provided that neither the Company nor its Board of Directors may recommend any Acquisition Proposal unless permitted by Section 6.5(b) below and the Company may not fail to make or withdraw, modify or change in a manner adverse to Parent all or any portion of the Company Board Recommendation unless permitted by Section 6.1(b), and provided further that, notwithstanding anything herein to the contrary, any "stop-look-and-listen" communication by the Company or its Board of Directors to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (as defined belowor any similar communication to the stockholders of the Company in connection with the making or amendment of a tender offer or exchange offer containing the substance of a "stop-look-and-listen" communication pursuant to such Rule 14d-9(f)) shall not be considered a failure to make, or a withdrawal, modification or change in any manner adverse to Parent of, all or a portion of the Company Board of Recommendation) or (ii) participate prior to the adoption of this Agreement by the Company's stockholders in accordance with this Agreement, (A) providing access to its properties, books and records and providing information or data in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the party so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Company Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement and it being understood that the Company may enter into a confidentiality agreement without a standstill provision or with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Company Confidentiality Agreement), or (B) engaging in any negotiations or discussions or negotiations regarding, or furnish to with any person 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, any who has made an unsolicited bona fide written Acquisition Proposal; provided, however, if and only to the extent that if, at any time prior to receipt taking any of the approval actions set forth in clauses (A) or (B) of the Merger by the holders of the Consumers Common Shares clause (the "Consumers Applicable Period"ii), (x) the Board of Directors of Consumers determines the Company shall have determined in good faith, after consultation with its outside counsellegal counsel and financial advisors, that it such action is necessary to do so in order for the Board of Directors to comply with its fiduciary duties to Consumers' shareholders under applicable lawlaw and that such Acquisition Proposal will result in, Consumers mayor could reasonably be expected to constitute or result in, a Superior Proposal from the party that made the applicable Acquisition Proposal, and (y) the Company shall have informed Parent promptly following (and in no event later than 24 hours after) the taking by it of any such action. A "Superior Proposal" means an Acquisition Proposal that is reasonably capable of being consummated, taking into account all legal, financial, regulatory, timing, and similar aspects of, and conditions to, the proposal, the likelihood of obtaining necessary financing and the person making the proposal, and, if consummated, would result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (after giving effect to any adjustments to the terms and provisions of this Agreement committed to in writing by Parent in response to a Superior Proposal such Acquisition Proposal). The Company shall use its reasonable best efforts to take the necessary steps promptly to inform the persons set forth in clauses (as defined in Section 4.7.1i), (ii) which was not solicited by it or which did not otherwise result from a breach and (iii) of the first sentence of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice"6.5(a) and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result obligations undertaken in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSection 6.5.
Appears in 1 contract
Samples: Merger Agreement (WPP Group PLC)
Acquisition Proposals. 4.6.1 Consumers NTC agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission otherwise facilitate (including by way of any Acquisition Proposal (as defined belowfurnishing information) or (ii) participate in any discussions or negotiations regarding, or furnish to any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information offer with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryreorganization, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers involving, or any purchase or sale of all or any significant portion of the assets or of the equity securities of, it or any of its Subsidiaries that, in any such subsidiarycase, could reasonably be expected to interfere with the completion of the Merger or the other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). NTC further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal. NTC agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Notwithstanding the foregoing, NTC and its officers, directors, advisors and their respective representatives will not be prohibited from taking any of the actions indicated above in this section to the extent such action is taken by, or upon the authority of, the NTC Board of Directors in the exercise of good faith judgment as to its fiduciary duties to the NTC Stockholders, which judgment is based upon the advice of independent, outside legal counsel that a failure of the NTC Board of Directors to take such action would be likely to constitute a breach of its fiduciary duties to the NTC Stockholders. In addition to the foregoing, if NTC receives, prior to the Effective Time or the termination of this Agreement, any offer, proposal, or request relating to any of the above, NTC shall immediately notify Parent thereof, including information as to the identity of the offer or the party making any such offer or proposal and the specific terms of such offer or proposal, as the case may be, and such other information related thereto as Parent may reasonably request. The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 6.4 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Section 6.4 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Parent may be entitled at law or in equity.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any of its Subsidiaries nor any of its or its Subsidiaries' officers and directors shall, and that it shall notcause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and other representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, tender offer, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or substantially all of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of its or its Subsidiaries' officers and directors shall, and that it shall cause its and its Subsidiaries' employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any 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 either the Company or any of its representatives or the Board of Directors of the Company from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or otherwise complying with the Exchange Act; (B) providing information in response to a request therefor by a Person who has made an unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) recommending such an Acquisition Proposal to the stockholders of the Company, if, at any time prior and only to receipt of the approval of the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"B), (C) or (D) above, the Board of Directors of Consumers the Company determines in good faith, after consultation with either (x) upon advice of outside counsel, legal counsel that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision the failure to take such action to PSC would constitute a breach of the directors' fiduciary duties under applicable law or (the "Consumers Notice"y) and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior that such Acquisition Proposal pursuant to a customary confidentiality contains terms such that if an agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or such Acquisition Proposal were entered into it would be, in the aggregate, more favorable to the Company, taking into account, at the sole discretion of the net revenuesBoard of Directors of the Company, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owningthe matters described in Section 4.5 of the articles of incorporation of the Company, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementAgreement (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal; it being understood that any Acquisition Proposal made prior to the date hereof may, if made at any time after the date hereof, be deemed a Superior Proposal, if it would otherwise fulfill the requirements for being deemed a Superior Proposal hereunder. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 7.2. The Company will, within forty-eight hours of receipt of an Acquisition Proposal that would be reasonably likely to result in a Superior Proposal, notify Parent of the receipt and terms of such proposal, including the identity of the offeror, and will keep Parent reasonably informed of the status of any such Proposal. The Company also agrees that as soon as reasonably practicable after the date hereof it will request the return of confidential information from any Person previously receiving such information in connection with such Person's consideration of a potential Acquisition Proposal.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers Peoples agrees that neither it nor Peoples Bank shall, and that it shall notdirect and use its reasonable best efforts in good faith to cause its and Peoples Bank’s directors, nor shall it authorize or permit any officerofficers, director or employee ofemployees, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving Peoples or Peoples Bank, or may reasonably be expected any purchase of all or substantially all of the assets of Peoples or Peoples Bank or more than 10% of the outstanding equity securities of Peoples or Peoples Bank (any such proposal or offer being hereinafter referred to lead as an “Peoples Acquisition Proposal”). Peoples further agrees that neither Peoples nor Peoples Bank shall, and that it shall direct and use its reasonable best efforts in good faith to cause its and Peoples Bank’s directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to a Peoples Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Peoples Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent Peoples or the Peoples Board from (i) complying with its disclosure obligations under federal or state Law; (ii) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Peoples Acquisition Proposal if the Peoples or Peoples Bank Board receives from the Person so requesting such information an executed confidentiality agreement; (iii) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Peoples Acquisition Proposal or (iv) recommending such a Peoples Acquisition Proposal to the shareholders of Peoples, at any time prior if and only to receipt of the approval of the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"ii), (iii) or (iv) above, (A) the Peoples Board of Directors of Consumers determines in good faith, faith (after consultation with outside legal counsel, ) that it is necessary to do so such action would be required in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable law, Consumers may, Law and (B) the Peoples Board determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Peoples Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction materially more favorable (btaking into account the fees, expenses, and costs associated herewith and therewith) participate to Peoples’ shareholders from a financial point of view than the Merger. A Peoples Acquisition Proposal which is received and considered by the Peoples Board in compliance with this Section 6.05 and which meets the requirements set forth in the preceding sentence is herein referred to as a “Peoples Superior Proposal.” Peoples agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct Peoples Acquisition Proposals. Peoples agrees that it will notify First Capital if any such inquiries, proposals or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesoffers are received by, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeany such information is requested from, or 15% any such discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, Peoples, Peoples Bank, or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Samples: Merger Agreement (First Capital Inc)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor IFC nor any of the respective officers and directors of the Company or IFC shall, and that it shall notdirect and use its commercially reasonable best efforts to cause its and IFC's employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorney, attorney or other advisor accountant retained by it or representative of, Consumers or any of its subsidiaries IFC) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to stockholders of the Company) with respect to (a) a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected (b) any purchase of all or substantially all of the assets of the Company or IFC or any purchase of Company or IFC equity securities which would result in the acquisition of beneficial ownership, as such term is defined in Rule 13d-3 under the Exchange Act, of more than 20% of any class of equity securities of the Company or IFC (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). The Company further agrees that neither the Company nor IFC nor any of the respective officers and directors of the Company or IFC shall, and that it shall direct and use its commercially reasonable best efforts to cause its and IFC's employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at 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) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the confidentiality agreement between Parent and the Company (such confidentiality agreement shall permit the disclosure of such information to Parent and CFSB); (C) engaging in any time prior negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to receipt the shareholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"B), (C) or (D) above, (i) the Company Board of Directors of Consumers determines in good faith, faith (after consultation with outside legal counsel, ) that it is such actions are necessary to do so in order to comply with for the proper discharge of its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, law and the Company Board determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a Superior Proposal, (bii) participate in the Company promptly notifies Parent of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal sought to be initiated or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of continued with the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers Company or any of its subsidiaries owningrepresentatives indicating, operating in connection with such notice, the name of such Person and the material terms and conditions of such inquiries, proposals or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more offers and (iii) the Company Meeting has not occurred. The Company shall keep Parent apprised of any class related developments, discussions and negotiations (including the terms and conditions of voting securities such Acquisition Proposal) on a current basis. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any Acquisition Proposals. The Company will take the necessary steps to inform the appropriate individuals or entities referred to in the first sentence hereof of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, the obligations undertaken in this Section 6.06. The Company will promptly request each person (other than Parent or CFSB) that has executed a confidentiality agreement prior to the transactions contemplated date hereof in connection with its consideration of a business combination with the Company or IFC to return or destroy all confidential information previously furnished to such person by or on behalf of the Company or IFC. If the Company Board has withheld, withdrawn or amended or modified in a manner adverse to the consummation of the Merger its recommendation of the Merger or recommended the approval of a Superior Proposal in accordance with Section 6.02(a) or Section 6.06, it may cause the Company to terminate this AgreementAgreement and enter into an agreement with respect to an Acquisition Proposal; provided, however, that this Agreement may not be terminated by the Company until the expiration of five business days following the Parent's receipt of written notice advising the Parent that the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing) identifying the person making the Superior Proposal and stating whether the Company intends to enter into a definitive agreement with respect to the Superior Proposal. After providing such notice, the Company shall provide a reasonable opportunity to the Parent during the five-day period to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the Merger on such adjusted terms.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) The Company agrees that neither the Company, its Subsidiaries, nor any of the respective officers and directors of the Company or its Subsidiaries, shall it authorize or permit any officerand the Company shall direct and use its best efforts to cause its employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by the Company or any of its subsidiaries Subsidiaries) not to, take or cause, directly or indirectly, any of the following actions with any party other than Parent, Merger Sub or their respective designees: (i) directly or indirectly solicit, initiate encourage, initiate, participate in or encourage otherwise facilitate (including by way of furnishing information) any negotiations, inquiries or discussions with respect to any offer, indication or proposal to acquire all or more than 15% of the submission Company's business, assets or capital shares whether by merger, consolidation, other business combination, purchase of any assets, reorganization, tender or exchange offer or otherwise (each of the foregoing, an "Acquisition Proposal (as defined belowProposal") or (ii) participate disclose, in connection with an Acquisition Proposal, any information or provide access to its properties, books or records. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding, or furnish to with any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information parties conducted heretofore with respect to Consumers and its subsidiaries any of the foregoing. The Company will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of Section 5.4(a) hereof of the obligations undertaken in this Section 5.4. The Company also will promptly request any person making Person which may have heretofore executed a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation in connection with its outside counsel) and consideration of acquiring the Company and/or any of its Subsidiaries to return or destroy all confidential information heretofore furnished to such person by or on behalf of the Company.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a) or elsewhere in this Agreement, prior to the consummation of the Offer, the Company may participate in discussions or negotiations regarding such Superior Proposal. For purposes with, and furnish non-public information, and afford access to the properties, books, records, officers, employees and representatives of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating the Company to any direct Person, entity or indirect acquisition group if such Person, entity or purchase of a business (a "Material Business") that constitutes 15% or more group has delivered to the Company, prior to the consummation of the net revenuesOffer, net income or and in writing, an Acquisition Proposal which is not subject to any financing contingency and which the assets Company Board in its good faith judgment (including equity securitiesafter consultation with its independent financial advisor) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that determines if consummated would result in any person beneficially owning 15% or be more favorable, from a financial point of any class of voting securities of Consumers or any such subsidiaryview, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other to the Company's stockholders than the transactions contemplated by this AgreementAgreement and with respect to which the Company Board receives advice of its outside legal counsel that the Company Board would breach its fiduciary duties if it did not accept the Acquisition Proposal (a "Superior Proposal"). In the event the Company receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this paragraph (b)) will prevent the Company Board from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its stockholders, if the Company Board determines (after consultation with its independent financial advisor and outside legal counsel) that its fiduciary duties require it to do so; in such case, the Company Board may withdraw, modify or refrain from making its recommendation of the Offer and the Merger; provided, however that the Company (i) shall have promptly notified Parent, and in any event within 24 hours, of any Acquisition Proposal received by, any such information requested from, or any such negotiations or discussions sought to be initiated or recommenced with, the Company or any of its Subsidiaries, indicating, in connection with such notice, the name of the Person making the Acquisition Proposal or taking such action and, in reasonable detail, the significant terms of any such Acquisition Proposal and including with such notice any documentation relating to such Acquisition Proposal, (ii) shall provide Parent at least 48 hours prior written notice of the Company's intention to execute or enter into an agreement relating to such Superior Proposal and (iii) may only terminate this Agreement by written notice to Parent provided no sooner than 48 hours after Parent's receipt of a copy of such Superior Proposal (or a detailed description of the significant terms and conditions thereof).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that neither it nor any of its Subsidiaries shall, and that it shall not, nor shall it not authorize or permit any officerits or its Subsidiaries’ directors, director officers, employees, agents or employee of, or representatives (including any investment banker, attorneyfinancial advisor, consultant, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries toSubsidiaries)(collectively, “Representatives”), directly or indirectly, (i) to solicit, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer (including any proposal or offer to the Company’s stockholders) that constitutes, constitutes or may would reasonably be expected to lead to, a proposal for any tender offer, merger, recapitalization, reorganization, share exchange, business combination, consolidation, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries and a third party, or any purchase by a third party of more than 10% of the outstanding shares of any class of the Company’s capital stock (other than upon the exercise of Company Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of the Company or any of its Subsidiaries constituting more than 10% of the assets of the Company and its Subsidiaries, taken as a whole, other than acquisitions or sales of inventory in the ordinary course of business (any such proposal or offer, other than in connection with the Merger, whether in a single transaction or a series of related transactions, being hereinafter referred to as an “Acquisition Proposal”). The Company further agrees that neither it nor any of its Subsidiaries shall, and that it shall not authorize or permit its or its Subsidiaries’ Representatives to: (i) engage, directly or indirectly, in any discussions or negotiations with, or provide any confidential information or data to, any Person in furtherance of or relating to an Acquisition Proposal (and the Company, its Subsidiaries and all such Persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal); provided, however, that if, at any time prior (ii) except to the extent required to give effect to Section 6.2(c) in connection with the receipt of the approval of the Merger by the holders Company of an unsolicited Acquisition Proposal described in clause (1) or (2) thereof, grant any waiver or release under any confidentiality agreement, standstill agreement or similar agreement with respect to Company or any of its Subsidiaries (it being understood and agreed that receipt by the Consumers Common Shares Company of unsolicited Acquisition Proposals or Superior Proposals shall not be deemed to be such a waiver or release); or (iii) execute or enter into any written agreement, letter of intent, acquisition agreement or similar agreement with respect to any Acquisition Proposal (an “Acquisition Agreement”).
(b) Neither the "Consumers Applicable Period"Company nor its Board of Directors shall approve, recommend or declare advisable any Acquisition Proposal or Acquisition Agreement (or publicly propose to approve, recommend or declare advisable, or formally resolve to approve or authorize, any Acquisition Proposal or Acquisition Agreement), except in connection with a termination of this Agreement in accordance with Section 6.2(e) hereof. Nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) complying with its disclosure obligations under applicable Laws or (ii) from taking and disclosing to its stockholders a position not inconsistent herewith with respect to an Acquisition Proposal by a third party to the extent required by Rule 14d-9(a) or Rule 14e-2(a) promulgated under the Exchange Act. It is understood and agreed that (i) any “stop-look-and-listen” communication by the Board of Directors of Consumers the Company to the stockholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication to the stockholders of the Company in each case in connection with and no later than 10 Business Days after the commencement of a tender offer or exchange offer, or (ii) any disclosure of factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the terms of such proposal, shall not be deemed to constitute a breach of the first sentence of this Section 6.2(b).
(c) Notwithstanding the limitations set forth in Section 6.2(a), if no later than 11:59 p.m., New York City time, on the 25th calendar day after the date of execution of this Agreement (the “Initial Proposal Deadline”), the Company receives an unsolicited written Acquisition Proposal (other than as a result of its breach of Section 6.2(a)) which (1) constitutes a Superior Proposal (provided the Board of Directors of the Company so determines in good faith, after consultation with the Company’s outside counsel, that it is necessary legal and financial advisors) or (2) which the Board of Directors of the Company determines prior to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers maythe Initial Proposal Deadline, in response good faith after consultation with the Company’s outside legal and financial advisors, could reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Superior Proposal (in either of case (1) or (2), an “Eligible Acquisition Proposal”), the Company may take, or the Company may direct its Representatives to take, the following actions prior to the later of the Final Change Deadline (as defined hereinafter defined), or, if applicable, the Superior Proposal Termination Date (as hereinafter defined), with respect to such Acquisition Proposal: (x) furnish nonpublic information to the third party making such Acquisition Proposal, if, and only if, (i) all such information provided to such third party and its Representatives has previously been made available to Parent or is made available to Parent substantially concurrently (and in Section 4.7.1any event within 24 hours) with the time such information is provided to such third party and (ii) prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement on terms substantially similar, with respect to confidentiality, to the terms of the Confidentiality Agreement and (y) engage in discussions or negotiations with the third party and its Representatives with respect to the Acquisition Proposal. “Superior Proposal” shall mean any unsolicited written bona fide proposal to consummate an Acquisition Proposal made by a third party (which was not solicited by it or third party shall have made an Eligible Acquisition Proposal prior to the Initial Proposal Deadline), which did not otherwise result from a knowing or material (whether or not knowing) breach of this Section 4.66.2(a), and subject to providing prior written notice on terms which the Board of its decision to take such action to PSC Directors of the Company determines in good faith (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its financial advisors and outside legal counsel) and to be more favorable from a financial point of view (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more the perspective of the net revenues, net income or Company’s stockholders) than the assets (including equity securities) of Consumers Merger and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated hereby, taking into account (i) any proposal by Parent to amend the terms of the transactions contemplated hereby or this AgreementAgreement and (ii) all legal, financial, regulatory and other aspects of such proposal that the Board of Directors of the Company deems relevant, and is reasonably capable of being consummated by the proposing third party.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall notHaven agrees that neither it nor any of its Subsidiaries, nor any of the respective officers and directors of Haven or any of its Subsidiaries, shall, and Haven shall it authorize or permit any officerdirect and use its best efforts to cause its employees, director or employee ofagents and representatives (including, or without limitation, any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to Haven's stockholders) with respect to a merger, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or any significant portion of the assets or any equity securities of, Haven or any of its material Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal") or (b) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent Haven 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) (A) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal (an "Unsolicited Acquisition Proposal") if the Board of Directors receives from the person so requesting such information executed confidentiality agreement on terms substantially equivalent to those contained in such confidentiality agreements between Queens and Haven, at any time prior to receipt dated as of the approval of the Merger by the holders of the Consumers Common Shares April 12, 2000 (the "Consumers Applicable PeriodConfidentiality Agreement"); or (B) engaging in any negotiations or discussions with any person who has made an Unsolicited Acquisition Proposal, if and only to the extent that, in each such case referred to in clause (A) or (B) above, (x) the Board of Directors of Consumers determines in good faithHaven, after consultation with outside legal counsel, that it is in good faith deems such action to be legally necessary to do so in order to comply with for the proper dixxxxxxx xx its fiduciary duties to Consumers' shareholders under applicable lawlaw and (y) the Board of Directors of Haven, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) financial advisor, determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and (b) participate regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in discussions or negotiations regarding such Superior Proposal. For purposes of a more favorable transaction than the transaction contemplated by this Agreement, "taking into account the long-term prospects and interests of Haven and its stockholders. Haven will notify Queens immediately orally (within one business day) and in writing (within three business days) if any such Acquisition Proposal" means Proposals are received by, any such information is requested from or any such negotiations or discussions are sought to be initiated or continued with Haven after the date hereof, the identity of the person making such inquiry, proposal or offer from and the substance thereof and will keep Queens informed of any person relating developments with respect thereto immediately upon the occurrence thereof. Subject to the foregoing, Haven will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any direct of the foregoing. Haven will take the necessary steps to inform the appropriate individuals or indirect acquisition or purchase entities referred to in the first sentence hereof of the obligations undertaken in this Section 4.
1. Haven will promptly request each person (other than Queens) that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers combination with Haven or any of its subsidiaries owning, operating Subsidiaries to return or controlling a Material Business, any tender offer destroy all confidential information previously furnished to such person by or exchange offer that if consummated would result in any person beneficially owning 15% or more on behalf of any class of voting securities of Consumers Haven or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementof its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) Company represents and warrants to, and covenants and agrees with, Parent and Newco that neither Company nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries has any agreement, arrangement or understanding with any potential acquiror that, directly or indirectly, would be violated, or require any payments, by reason of the execution, delivery and/or consummation of this Agreement. Company shall, and shall cause its subsidiaries and use its best efforts to cause its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person (including a "person" as defined in Section 13(d)(3) of the Exchange Act) other than Parent or Newco (a "Third Party") heretofore conducted with respect to any Acquisition Transaction. Company shall not, and shall cause its subsidiaries and use its best efforts to cause its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives not to, directly or indirectly, (ix) solicit, initiate initiate, continue, facilitate or encourage the submission (including by way of furnishing or disclosing non-public information) any Acquisition Proposal (as defined below) inquiries, proposals or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information offers with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any acquisition or purchase of a material portion of the assets or business of, or any significant equity interest in (including by way of a tender offer), or any amalgamation, merger, consolidation or business combination with, or any recapitalization or restructuring, or any similar transaction involving, Company or any of its subsidiaries (the foregoing being referred to collectively as an "Acquisition Transaction"), or (y) negotiate, explore or otherwise communicate in any way with any Third Party with respect to any Acquisition Transaction or enter into, approve or recommend any agreement, arrangement or understanding requiring Company to abandon, terminate or fail to consummate the Offer and/or the Amalgamation or any other transaction contemplated hereby. Notwithstanding anything to the contrary in the foregoing, Company may, prior to the purchase of Shares pursuant to the Offer, in response to an unsolicited written proposal with respect to an Acquisition Transaction involving the acquisition of all of the Shares (or all or substantially all of the assets of Company and its subsidiaries) from a Third Party (which proposal (I) is not subject to a financing condition and is from a person that Xxxxxxx, Xxxxx & Co. or another nationally recognized investment bank advises in writing is financially capable of consummating such proposal or (II) is subject to financing, but is from a person that Xxxxxxx, Sachs & Co. or another nationally recognized investment bank advises in writing is financially capable of achieving such financing to consummate such proposal, (i) furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if and to the extent that (a) the Board determines reasonably and in good faith by a majority vote (after receipt of written advice of Company's outside legal counsel that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law), that taking such action would, in all likelihood, lead to an Acquisition Transaction that, based upon the written advice of Xxxxxxx, Xxxxx & Co., is more favorable to Company's shareholders than the Offer and the Amalgamation and that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law (the proposal with respect to an Acquisition Transaction meeting the requirements of the parenthetical clause immediately preceding clause (i) and this clause (a), a "Superior Proposal"), (b) prior to furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such Third Party, Company receives from such Third Party an executed confidentiality agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not provide for any exclusive right to negotiate with Company or any payments and (c) Company advises Parent of all such non-public information delivered to such Third Party concurrently with such delivery; provided, however, that ifCompany shall not, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")and shall cause its affiliates not to, the Board of Directors of Consumers determines in good faith, after consultation enter into a definitive agreement with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response respect to a Superior Proposal unless (as defined x) Company concurrently terminates this Agreement in Section 4.7.1accordance with the terms hereof and pays any amounts required under Article VIII and (y) which was not solicited by such agreement permits Company to terminate it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making if it receives a Superior Proposal pursuant Proposal, such termination and related provisions to a customary confidentiality agreement (be on terms no less favorable to Company, including as determined by Consumers after consultation with its outside counsel) to fees and reimbursement of expenses, as those contained herein.
(b) participate Company shall promptly (but in discussions or negotiations regarding such Superior Proposal. For purposes any event within one day of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase Company becoming aware of a business (a "Material Business"same) that constitutes 15% or more advise Parent of the net revenuesreceipt by Company, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owningor any of Company's or any subsidiary's officers, operating directors, employees, investment bankers, attorneys or controlling a Material Business, any tender offer other agents or exchange offer that if consummated would result in any person beneficially owning 15% or more representatives of any class inquiries or proposals relating to an Acquisition Transaction and any actions taken pursuant to Section 5.3(a). Company shall promptly provide Parent with a copy of voting securities of Consumers or any such subsidiary, inquiry or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or proposal in writing and a written statement with respect to any such subsidiaryinquiries or proposals not in writing, other than which statement shall include the transactions contemplated by identity of the parties making such inquiries or proposal and the terms thereof. Company shall, from time to time, promptly inform Parent of the status and content of any discussions regarding any Acquisition Transaction with a Third Party. For the avoidance of doubt, Company agrees that it will not enter into any agreement with respect to a Superior Proposal unless and until Parent has been given at least five business days prior to the entering into such agreement to match the terms of such agreement.
(c) Company has obtained the agreement of each member of the Board and the board of directors of each of its subsidiaries and of its executive officers and investment bankers that each such person will comply with the provisions of this AgreementSection 5.3 as if it were a party hereto (to the extent that it would be otherwise applicable thereto).
Appears in 1 contract
Samples: Amalgamation Agreement (Exel LTD)
Acquisition Proposals. 4.6.1 Consumers shall not, The Company agrees that neither it nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal. The Company further agrees that constitutesneither the Company nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or may reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at 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) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement; (C) engaging in any time prior negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to receipt the shareholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, in each such case referred to in clause (the "Consumers Applicable Period"B), (C) or (D) above, (i) the Company Board of Directors of Consumers determines in good faith, faith (after consultation with outside legal counsel, ) that it is necessary to do so such action would be required in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable law, Consumers may, law and (ii) the Company Board determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Company in compliance with this Section 6.08 and which meets the requirements set forth in clause (bD) participate in of the preceding sentence is herein referred to as a "Superior Proposal." The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct Acquisition Proposals. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesoffers are received by, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeany such information is requested from, or 15% any such discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, the Company or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Charter shall, and shall notdirect and use its commercially reasonable efforts to cause its Subsidiaries and their Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other advisor representative retained by Charter or its Subsidiaries) to, immediately cease and cause to be terminated any activities, discussions, or negotiations with any Person other than Citizens and Citizens Bank with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its commercially reasonable efforts to enforce, and will direct and use their commercially reasonable efforts to cause its Subsidiaries to use their commercially reasonable 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 Charter or 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, Charter shall not, and shall direct and use its commercially reasonable efforts to cause its Subsidiaries and Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative of, Consumers retained by Charter or any of its subsidiaries Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate initiate, or encourage the submission (including by way of any Acquisition Proposal (as defined below) furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), 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, constitutes or may reasonably could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding Charter or its Subsidiaries to any Person other than Citizens and Citizens Bank relating to or in connection with 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 Citizens and Citizens Bank, regarding any Acquisition Proposal; provided(iv) approve, howeverendorse, that ifor recommend, at or execute, enter into, or consummate, any time prior to receipt indication of the approval interest, letter of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")intent, the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person other Contract relating to any direct Acquisition Proposal or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesrequiring Charter to abandon, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeterminate, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than 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.
(c) In addition to the obligations of Charter set forth above, Charter shall promptly (within not more than 24 hours) advise Citizens orally and in writing of their receipt of any Acquisition Proposal, or any request for information or inquiry which could be expected to lead to an Acquisition Proposal, and shall keep Citizens informed, on a current basis, of the continuing status thereof, including the terms and conditions thereof and any changes thereto, and shall provide to Citizens any written materials received by Charter or any of the Subsidiaries in connection therewith. Additionally, Charter shall contemporaneously provide or make available to Citizens 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 Citizens.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers From and after the date hereof, unless and until this Agreement shall have been terminated in accordance with its terms, the Seller and each Shareholder hereby agrees that it or he will not, nor shall it authorize will the Seller or any Shareholder permit any director, officer, director Shareholder, employee or employee of, agent of the Seller or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Shareholder to, directly or indirectly, : (i) take any action to solicit, initiate submission of or encourage proposals or offers from any Person relating to any acquisition or purchase of all or any portion of the submission Business or the Acquired Assets (other than in the Ordinary Course of Business), or any equity interest in Seller, or any merger or business combination with Seller (any such proposal, an “Acquisition Proposal (as defined below) or Proposal”), (ii) participate in any discussions or negotiations regardingregarding an Acquisition Proposal with any Person other than Purchaser and its representatives, (iii) furnish any information or afford access to the properties, books or records related to the Business to any Person that may consider making, or furnish to any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information has made an offer with respect to Consumers an Acquisition Proposal other than Purchaser and its subsidiaries representatives, or (iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income foregoing. The Seller and the Shareholders shall notify Purchaser promptly if any unsolicited Acquisition Proposal or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryoffer, or any mergerinquiry or contact with any Person with respect thereto, consolidationis made, business combinationsuch notice to include the identity of the Person making such proposal, recapitalizationoffer, liquidationinquiry or contact, dissolution and the terms of such offer. The Seller and each Shareholder agrees that Purchaser would not have an adequate remedy at law for money damages in the event that the covenants set forth in this Section 5.13 are not performed in accordance with their terms and further agrees that Purchaser shall be entitled to specific performance of the terms hereof in addition to any other remedy to which Purchaser may be entitled at law or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementin equity.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall (a) Each of the Company and Parent agrees that, except as expressly contemplated by this Agreement, it and each of its Subsidiaries will not, nor and it shall it authorize or permit any officerdirect and use its commercially reasonable best efforts to cause its and its Subsidiaries' officers, director or employee ofdirectors, or any employees, investment bankerbankers, attorneyattorneys, accountants, financial advisors, agents or other advisor or representative ofrepresentatives (collectively, Consumers or any with respect to each of its subsidiaries the Company and Parent, such Person's "REPRESENTATIVES") not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise knowingly facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation, scheme of arrangement or similar transaction involving the Company or Parent, or any purchase (pursuant to a new issuance, tender offer, takeover bid or otherwise) of, or offer to purchase, 20% or more of the voting securities of the Company or Parent, as the case may reasonably be expected be, or any business that constitutes 20% or more of such Person's consolidated net revenues, net income or shareholders' funds (as reflected on the Company 2000 Financial Statements or Parent 2000 Financial Statements, as applicable) (any such proposal or offer being hereinafter referred to lead as an "ACQUISITION PROPOSAL"). Each of the Company and Parent further agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its commercially reasonable best efforts to cause its and its Subsidiaries Representatives not to, directly or indirectly, have any discussions with or provide any confidential information or data to any Person relating to an Acquisition Proposal with respect to it, engage in any negotiations concerning an Acquisition Proposal with respect to it, otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal with respect to it, or enter into any agreement with respect to any Acquisition ProposalProposal with respect to it; provided, however, that nothing contained in this Agreement shall prevent either the Company or Parent or its respective board of directors from (i) making any disclosure to its shareholders if, at any time prior in the good faith judgment of its board of directors, failure so to receipt disclose would be inconsistent with its obligations under applicable Law, the listing rules of the approval of NYSE, the Merger by UKLA or the holders of the Consumers Common Shares City Code on Takeovers and Mergers (the "Consumers Applicable PeriodCITY CODE"); provided, however, that it shall use commercially reasonable best efforts to notify the Board other party of Directors such obligation and the substance of Consumers the planned disclosure as promptly as practicable (and in any event prior to making any such disclosure); (ii) prior to the Company Shareholder Meeting or the Parent Shareholder Meeting, respectively, discussing or negotiating with or furnishing information to any Person who has made a bona fide unsolicited written Acquisition Proposal which did not, directly or indirectly, result from or follow a breach by the Company or Parent, respectively, of this Section 6.3(a); provided, that, unless and solely to the extent otherwise expressly required by the U.K. Panel on Takeovers and Mergers pursuant to the City Code (after Parent shall have used its commercially reasonable best efforts to defeat or narrow such requirement) in the case of Parent, no information shall be furnished to any Person unless such Person shall have entered into a confidentiality agreement with the Company or Parent, as the case may be, containing terms and conditions of substantially the same effect as those of the Confidentiality Agreement; or (iii) recommending (but only at a time that is after the fifth Business Day following the other party's receipt of written notice advising such other party that such board of directors is prepared to recommend a Superior Proposal) such an Acquisition Proposal to its shareholders, if and only to the extent that, in the case of actions referred to in clause (ii) or clause (iii), such Acquisition Proposal is or, in the case of clause (ii) would reasonably be expected to result in, a Superior Proposal and the board of directors of the Company or Parent, as applicable, determines in good faith, after consultation with outside legal counsel, that it is necessary failure to do so (and, in order the case of clause (ii), failure to comply continue to do so) would be inconsistent with its their fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior ProposalLaw. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means in respect of the Company or Parent, as applicable, any Acquisition Proposal by a third party (x) that would, if consummated, be more favorable than the Merger to its shareholders, in the good faith judgment of such party's board of directors, after consultation with its financial advisors, and (y) which the board of directors of such Party determines in its good faith judgment to constitute a transaction that is reasonably capable of being consummated on the terms set forth, taking into account all legal, financial, regulatory and other aspects of such proposal. Each of the Company or Parent agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations by it or its Representatives with any Person other than Parent or the Company, respectively, conducted heretofore with respect to any Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more . Each of the net revenuesCompany and Parent also agrees that it will (q) if it has not already done so, net income or promptly request each Person, if any, that has heretofore executed a confidentiality agreement within the assets (including equity securities) of Consumers and 12 months prior to the date hereof in connection with its subsidiaries, taken as a whole, or 15% or more consideration of any class potential Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of voting securities of Consumers it or any of its subsidiaries owningSubsidiaries; (r) promptly notify all Persons with whom it has a continuing standstill or similar agreement pursuant to which any third party is authorized to make any Acquisition Proposal that it is withdrawing any such authorization; and (s) take all commercially reasonable actions necessary to enforce the provisions of any such continuing confidentiality, operating standstill or controlling a Material Businesssimilar agreement.
(b) Each of the Company and Parent agrees that it will take the necessary steps promptly to inform its Subsidiaries and its Subsidiaries' Representatives of the obligations undertaken in this Section 6.3. Each of the Company or Parent agrees that it will notify the other promptly (and in any event within 24 hours) if any inquiries, proposals or offers relating to or constituting an Acquisition Proposal are received by, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryinformation is requested from, or any mergerdiscussions or negotiations are sought to be initiated or continued with, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers it or any of its or its Subsidiaries' Representatives indicating, in connection with such subsidiarynotice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the other than fully informed, on a prompt basis (and in any event within one Business Day), of the transactions status and material terms of any such inquiries, proposals or offers. All information provided to the other party under this Section 6.3(b) shall be kept confidential by the receiving party in accordance with the terms of the Confidentiality Agreement.
(c) Nothing contained in this Section 6.3 shall prohibit either party, to the extent applicable, from taking and disclosing to its shareholders a position contemplated by this AgreementRule 14e-2(a) promulgated under the Exchange Act or from making disclosure of the fact than an Acquisition Proposal with respect to it has been made, the identity of the party making such proposal or the material terms of such proposal in the Form F-4, the Company Proxy Statement or the Parent Documents, to the extent disclosure of such facts, identity or terms is advisable under applicable Law (and the disclosure of such facts, by itself, shall not be deemed a withdrawal or adverse modification of its approval or recommendation to shareholders of the Merger).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Each of BBCN and WIBC agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notcause its and its Subsidiaries’ employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of knowingly facilitate any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information inquiries with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or may could reasonably be expected to lead to, a transaction to effect, (A) a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving it or any of its Subsidiaries that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning 20% or more of any class of equity securities or any amount of securities representing 20% or more of the total voting power of it (or of the surviving parent entity in such transaction) or of any of its Subsidiaries, or (B) any purchase or sale or other acquisition of 20% or more of the consolidated assets (including stock of its Subsidiaries) of it and its Subsidiaries, taken as a whole, or (C) any purchase or sale of, or tender or exchange offer for, or other acquisition of, its voting securities that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning 20% or more of any class of equity securities or any amount of securities representing 20% or more of the total voting power of it (or of the surviving parent entity in such transaction) or of any of its Subsidiaries, or (D) a liquidation, dissolution or winding up of it (any such proposal, offer or transaction in any of the preceding clauses (A), (B), (C) or (D) (other than a proposal or offer made by the other Party or an affiliate thereof) being hereinafter referred to as an “Acquisition Proposal”), (ii) engage or enter into, continue or otherwise participate in any discussions with or provide any confidential information or data to any Person relating to, or engage in any negotiations concerning, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make an Acquisition Proposal or any other proposal that could reasonably be expected to lead to an Acquisition Proposal, or (iii) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal; providedProposal or propose or agree to do any of the foregoing.
(b) (i) Notwithstanding the foregoing, however, that ifthe board of directors of each Party shall be permitted, at any time prior to receipt the approval of the approval principal terms of the Merger by the holders Required WIBC Vote (in the case of WIBC) or at any time prior to the Consumers Common Shares approval and adoption of this Agreement by the Required BBCN Vote (in the "Consumers Applicable Period"case of BBCN), and subject to compliance by such Party with the Board other terms of Directors this Section 6.4 and to such Party first entering into a confidentiality agreement (a copy of Consumers determines which shall be provided to the other Party) with the Person making the Acquisition Proposal described below having provisions (including standstill provisions) that are no less favorable to such Party than those contained in the Confidentiality Agreement (but excluding the exclusivity provisions set forth in Amendment No. 1 to the Confidentiality Agreement) and that expressly permits the Party to comply with its obligations under this Section 6.4, to engage in discussions and negotiations with, or provide any nonpublic information or data to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person made or renewed after the date of this Agreement which such Party’s board of directors (x) concludes in good faithfaith constitutes or is reasonably likely to result in a Superior Proposal and (y) determines that engaging in such discussions and negotiations with, after consultation with outside counselor providing such nonpublic information or data to, that it such Person is necessary to do so in order for such board of directors to comply with its fiduciary duties to Consumers' shareholders its stockholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementApplicable Legal Requirements.
Appears in 1 contract
Samples: Merger Agreement (BBCN Bancorp Inc)
Acquisition Proposals. 4.6.1 Consumers (a) From the date hereof until this Agreement has been terminated as provided herein, Seller shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any officerdirector, director officer or employee of, of Seller or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of, Consumers of Seller or any of its subsidiaries (the "SELLER REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate or knowingly encourage the submission of any Acquisition Takeover Proposal (as defined below) or any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead way with respect to, any Acquisition Takeover Proposal; provided, however, that if, at any time prior to receipt of obtaining the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")its shareholders, the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers Seller or Seller Representatives may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal (as defined in Section 4.7.1) below), and which Takeover Proposal was not solicited by it or which unsolicited and did not otherwise result from a breach of this Section 4.65.03, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
5.03(c) and (ad), (x) furnish information with respect to Consumers Seller and its subsidiaries to any the person making a Superior such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) agreement, provided that all such information is provided to Buyer or has been previously provided to Buyer, and (by) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Superior Takeover Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers OC Financial agrees that it shall not, nor and that it shall it authorize or permit any officerdirect and use its reasonable best efforts to cause its directors, director or employee ofofficers, or any investment bankeremployees, attorney, or other advisor or representative of, Consumers or any of its subsidiaries agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving OC Financial, or may reasonably be expected any purchase of all or substantially all of the assets of OC Financial or more than 10% of the outstanding equity securities of OC Financial (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). OC Financial further agrees that it shall not, and that it shall direct and use its reasonable best efforts to cause its directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt nothing contained in this Agreement shall prevent OC Financial or the OC Financial board of the approval of the Merger by the holders of the Consumers Common Shares directors from (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply A) complying with its fiduciary duties to Consumers' shareholders disclosure obligations under applicable federal or state law, Consumers may, ; (B) providing information in response to a Superior request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the OC Financial board of directors receives from the Person so requesting such information an executed confidentiality agreement; (as defined C) engaging in Section 4.7.1) which was not solicited by it any negotiations or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance discussions with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior who has made an unsolicited bona fide written Acquisition Proposal pursuant or (D) voting to a customary confidentiality agreement recommend such an Acquisition Proposal to the stockholders of OC Financial, if and only to the extent that, in each such case referred to in clause (as determined by Consumers B), (C) or (D) above, (i) the OC Financial board of directors determines in good faith (after consultation with its outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (bii) participate the OC Financial board of directors determines in good faith (after consultation with its outside legal counsel and receipt of a written opinion of 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 proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to OC Financial's stockholders from a financial point of view than the Merger. An Acquisition Proposal which is received and considered by the OC Financial board of directors in compliance with this Section 6.7 hereof and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a "Superior Proposal." OC Financial agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding with any parties conducted heretofore with respect to any Acquisition Proposals. OC Financial agrees that it will promptly notify (which notification shall not more than 24 hours after the earlier of knowledge or receipt of such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal proposal, offer or offer from request) First Place if any person relating to such inquiries, proposals or offers are received by, any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholesuch information is requested from, or 15% any such discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, OC Financial or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Samples: Merger Agreement (OC Financial Inc)
Acquisition Proposals. 4.6.1 Consumers shall not(a) The Company agrees that neither it nor any of its Subsidiaries, nor any of the officers and directors of any of them shall, and that it shall it authorize or permit any officerdirect and use its reasonable efforts to cause its and its Subsidiaries' employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by them or any of its subsidiaries their Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction, or may reasonably be expected any purchase of all or 10% 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 lead as an "Acquisition Proposal"), it being understood that any such activities engaged in prior to the date of this Agreement do not violate this Section 6.9. The Company further agrees that from and after the date hereof neither it nor any of its Subsidiaries nor any of the officers and directors of any of them shall, and that it shall direct and use its reasonable efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by them or any of their Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise knowingly 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 its Board of Directors from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made a bona fide written Acquisition Proposal that was not solicited in violation of this Section 6.9(a) if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; (C) engaging in any negotiations or discussions with any person who has made a bona fide written Acquisition Proposal that was not solicited in violation of this Section 6.9(a); or (D) recommending such an Acquisition Proposal to the stockholders 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 Board of Directors of the Company determines in good faith after consultation with outside legal counsel that such action is consistent with its directors' fiduciary duties under applicable law and (ii) in each case referred to in clause (C) or (D) above, the Board of Directors of the Company determines in good faith (after 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 proposal and the person making the proposal and would, if consummated, result in a transaction or a combination of transactions more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.9. The Company agrees that it will notify Parent by the end of the next business day following receipt if any such inquiries, proposals or offers relating to an Acquisition Proposal are received by, any such A-39 45 information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such person (unless disclosure of such name is precluded by the terms of the proposal or offer in question) and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any of its Subsidiaries to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(b) Notwithstanding anything in this Section 6.9 to the contrary, if, at any time prior to receipt of obtaining the Company stockholders' approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")Merger, the Company's Board of Directors of Consumers determines in good faith, after consultation with on the basis of the advice of its financial advisors and outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior an Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which that did not otherwise result from a breach of Section 6.9(a), that such proposal is a Superior Proposal, the Company or its Board of Directors may terminate this Agreement if, and only if, the Company shall prior to or promptly following such termination enter into a definitive agreement containing the terms of a Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to this sentence, and any purported termination pursuant to this sentence shall be void and of no force or effect, unless the Company shall have complied with (i) all the provisions of this Section 4.66.9, including the notification provisions in this Section 6.9, (ii) the following proviso, and subject (iii) the payment of the termination fee described in Section 12.2(b) within the time period required by such Section; and provided further, however, that the Company shall not exercise its right to providing prior terminate this Agreement pursuant to this Section 6.9 until after three Business Days following Parent's receipt of written notice (a "Notice of its decision to take such action to PSC (the "Consumers NoticeSuperior Proposal") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making advising Parent that the Company's Board of Directors has received such a Superior Proposal and that such Board of Directors will, subject to any action taken by Parent pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding this sentence, cause the Company to accept such Superior Proposal. For purposes , specifying the material terms and conditions of this Agreement, "Acquisition Proposal" means any inquiry, such Superior Proposal and (unless disclosure of such name is precluded by the terms of the proposal or offer from in question) identifying the person making such Superior Proposal (it being understood and agreed that any person relating amendment to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers price or any other material term of its subsidiaries owning, operating or controlling such a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more Superior Proposal shall require an additional Notice of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSuperior Proposal and a new three Business Day period).
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall not, nor and shall it authorize or permit any officercause its Subsidiaries and use its reasonable best efforts to cause its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries "Representatives") not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of 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 (as defined below) or (iiiii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regardingwith, or furnish to any person any information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, howeverthat, that if, at any time prior to receipt of the approval of this Agreement and the Merger transactions contemplated hereby (including the Merger) by the holders shareholders of the Consumers Common Shares Company by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, after the date of this Agreement and its Board of Directors concludes in good faith (after receiving the "Consumers Applicable Period")advice of its outside counsel and with respect to financial matters, its financial advisors) 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 Consumers determines the Company concludes in good faith, faith (after consultation with receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that it is necessary failure to do so take such actions would more likely than not result in order to comply with a violation of its fiduciary duties to Consumers' shareholders under applicable law; provided, Consumers mayfurther, in response that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have provided such information to Purchaser and entered into a Superior Proposal (as defined in Section 4.7.1) which was not solicited by confidentiality agreement with such third party on material terms no less favorable to it than the Confidentiality Agreement. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or which did not otherwise result from a breach negotiations conducted before the date of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance Agreement with Section 4.6.2
(a) furnish information any person other than Purchaser with respect to Consumers any Acquisition Proposal. The Company will promptly (and in any event within twenty-four (24) hours) advise Purchaser 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), and will promptly (and in any event within twenty-four (24) hours) advise Purchaser of any related developments, discussions and negotiations, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall use its subsidiaries reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of the Company, to enforce any existing confidentiality, standstill or 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 date hereof, request and confirm the return or destruction of any confidential information provided to any person making a Superior Proposal (other than Purchaser and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless and until this Agreement shall have been duly 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 customary confidentiality agreement (as determined by Consumers after consultation referred to and entered into in accordance with its outside counselSection 6.12(a)) and relating to any Acquisition Proposal.
(b) participate As used in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiaryshall 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 the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (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 the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganizations. "Superior Proposal" shall mean a bona fide written Acquisition Proposal that the Board of Directors of the Company 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 (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 "25%" in the definition of Acquisition Proposal shall be deemed to be references to "a majority."
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Seller agrees that neither it nor the Seller Bank nor any of the respective officers and directors of Seller or the Seller Bank shall, and Seller shall notdirect and use its best efforts to cause its employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorneyattorney or accountant retained by it or the Seller Bank) not to:
(i) initiate, solicit or other advisor or representative of, Consumers or any of its subsidiaries toencourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to stockholders of Seller) with respect to a merger, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or 25% or more of the assets or equity securities of, Seller or the Seller Bank, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to lead as an “Acquisition Proposal”); or
(ii) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent Seller 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) (A) providing information in response to a request therefore by a person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors receives from such person so requesting such information an executed confidentiality agreement on terms no more favorable to such person than the confidentiality agreement between Purchaser and Seller, at or (B) engaging in any time prior negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal, if and only to receipt the extent that, in each such case referred to in clause (A) and (B) above, (x) the board of the approval directors of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faithSeller, after consultation with outside legal counsel, that it is in good xxxxx xxxxx such action to be legally necessary to do so in order to comply with for the proper discharge of its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, law and (y) the board of directors of Seller determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement.
(b) participate in Seller will notify Purchaser promptly if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or negotiations regarding continued with Seller after the date hereof, and the identity of the person making such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from and the substance thereof and will keep Purchaser informed of any person relating material developments with respect thereto immediately upon occurrence thereof. Subject to the foregoing, Seller will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any direct or indirect acquisition or purchase of the foregoing. Seller will promptly request each such person (other than Purchaser) that has previously executed a confidentiality agreement in connection with its consideration of a business (a "Material Business") that constitutes 15% combination with Seller or more the Seller Bank to return or destroy all confidential information previously furnished to such person by or on behalf of Seller or the Seller Bank. By virtue of the net revenuesexecution of this Agreement, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as Seller acknowledges that Purchaser is a whole, or 15% or more third party beneficiary of any class of voting securities of Consumers or any of its subsidiaries owningand all confidentiality agreements entered into by Seller in the past six (6) months similar to the confidentiality agreement between the parties hereto, operating or controlling a Material Businessand Seller hereby agrees to use commercially reasonable efforts to enforce such confidentiality agreements and to permit Purchaser to assist in such enforcement with respect to the confidentiality agreements, any tender offer or exchange offer that if consummated would result set forth in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSchedule 4.01(b).
Appears in 1 contract
Samples: Business Combination Agreement (Charter Financial Corp/Ga)
Acquisition Proposals. 4.6.1 Consumers (a) ICEWEB and its subsidiaries shall not, nor and shall it authorize or permit any officeruse its best efforts to cause their respective directors, director or employee ofofficers, employees, financial advisors, legal counsel, accountants, and other agents and representatives (for purposes of this Section 7.2 only, being referred to as "affiliates") not to, initiate, solicit, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries toencourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constituteswith respect to, engage or participate in negotiations concerning, provide any nonpublic information or data to, or may reasonably be expected to lead have any discussions with any person other than DSSC relating to, any Acquisition Proposal; providedacquisition, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares tender offer (the "Consumers Applicable Period"including a self-tender offer), the Board exchange offer, merger, consolidation, acquisition of Directors beneficial ownership of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting right to vote securities of Consumers such entity or any of its subsidiaries owningsubsidiaries, operating or controlling a Material Businessdissolution, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more business combination, purchase of any class of voting securities of Consumers all or any significant portion of the assets or any division of, or any equity interest in, such entity or any subsidiary, or similar transaction other than the Merger (such proposals, announcements, or transactions being referred to as "Acquisition Proposals"). ICEWEB shall promptly notify the others orally and in writing if any such Acquisition Proposal (including the terms thereof and identity of the persons making such proposals) is received and furnish to the other parties hereto a copy of any written proposal.
(b) DSSC and its subsidiaries shall not, and shall use its best efforts to cause their respective directors, officers, employees, financial advisors, legal counsel, accountants, and other agents and representatives (for purposes of this Section 7.2 only, being referred to as "affiliates") not to, initiate, solicit, or encourage, directly or indirectly, or take any other action to facilitate any inquiries or the making of any proposal with respect to, engage or participate in negotiations concerning, provide any nonpublic information or data to, or have any discussions with any person other than DSSC relating to, any acquisition, tender offer (including a self-tender offer), exchange offer, merger, consolidation, acquisition of beneficial ownership of or the right to vote securities of such entity or any of its subsidiaries, dissolution, business combination, recapitalizationpurchase of all or any significant portion of the assets or any division of, liquidationor any equity interest in, dissolution such entity or any subsidiary, or similar transaction involving Consumers or any such subsidiary, other than the Merger (such proposals, announcements, or transactions contemplated by this Agreementbeing referred to as "Acquisition Proposals"). DSSC shall promptly notify the others orally and in writing if any such Acquisition Proposal (including the terms thereof and identity of the persons making such proposals) is received and furnish to the other parties hereto a copy of any written proposal.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not6.10.1 From and after the date of this Agreement and until the termination of this Agreement, SSE agrees that neither it nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of the SSE Subsidiaries shall, and that it shall direct and use its subsidiaries best efforts in good faith to cause its and such Subsidiary’s directors, officers, employees, agents and representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal. SSE further agrees that constitutesneither it nor any of the SSE Subsidiaries shall, and that it shall direct and use its reasonable best efforts in good faith to cause its and such Subsidiary’s directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or may reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the nothing contained in this Agreement shall prevent SSE or its Board of Directors from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the SSE Board of Consumers Directors receives from the Person so requesting such information an executed confidentiality agreement substantially similar to that entered into with Liberty; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of SSE, if and only to the extent that, in each such case referred to in clause (B), (C) or (D) above, (i) the SSE Board of Directors determines in good faith, faith (after consultation with outside legal counsel, ) that it is necessary to do so such action would be required in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.and
Appears in 1 contract
Samples: Merger Agreement (Southern Connecticut Bancorp Inc)
Acquisition Proposals. 4.6.1 Consumers Each of ACT and ICH shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries or agents, affiliates, employees, advisors or representatives to, directly or indirectly, (ia) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (iib) participate in or encourage any discussions discussion or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that ifthe foregoing shall not prohibit the ACT Board of Trust Managers or the ICH Board of Directors, at as the case may be, from furnishing information to, or entering into discussions or negotiations with, any time person or entity that makes an unsolicited Acquisition Proposal to the extent that (A) the ACT Board of Trust Managers or the ICH Board of Directors, as the case may be, based upon the advice of outside legal counsel, determines in good faith that such action is required for it to comply with its fiduciary obligations to its shareholders or stockholders, as the case may be, under applicable Texas or Maryland law, as the case may be, (B) prior to receipt taking such action, ACT or ICH, as the case may be, receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity and (C) the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the applicable Board of Directors of Consumers determines concludes in good faith, after consultation with outside counselreceiving advice from its independent financial advisor, that it the Acquisition Proposal is necessary a Superior Proposal. The party hereto receiving such unsolicited Acquisition Proposal shall provide immediate oral and written notice to do so in order the other party hereto of (a) the receipt of any such Acquisition Proposal or any inquiry which could reasonably be expected to comply with lead to any Acquisition Proposal, (b) the material terms and conditions of such Acquisition Proposal or inquiry, (c) the identity of such person or entity making any such Acquisition Proposal or inquiry, (d) its intention to furnish information to, or enter into discussions or negotiations with, such person or entity and (e) subject to the fiduciary duties to Consumers' shareholders of its Board under applicable law, Consumers may, in response shall continue to a Superior keep such other party informed of the status and details of any such Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposalinquiry. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, bona fide proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combinationshare exchange, recapitalization, liquidation, dissolution tender offer or similar transaction involving Consumers ACT or ICH, as the case may be, or any purchase or other acquisition of all or any significant portion of the assets of such subsidiary, other than the transactions contemplated by this Agreementparty or any equity interest in such party.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall Allied will not, nor shall it authorize and will not --------------------- permit or permit cause any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers of its Subsidiaries or any of the officers or directors of it or its subsidiaries Subsidiaries to, and shall direct its and its Subsidiaries' Representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise knowingly facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal. Allied will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or may reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent Allied or its Board of Directors from (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal; (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the Members of Allied, at any time prior if and only to receipt of the approval of the Merger by the holders of the Consumers Common Shares extent that, (the "Consumers Applicable Period"i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers Allied determines in good faith, after consultation with outside counsel, faith that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision the failure to take such action is reasonably likely to PSC result in a breach of such Board's fiduciary duties under, or otherwise violate, applicable Law; and (ii) in each case referred to in clause (B) or (C) above, the "Consumers Notice") Board of Directors of Allied determines in good faith that such Acquisition Proposal may be a Superior Proposal. Allied will immediately cease and compliance cause to be terminated any existing activities, discussions or negotiations with Section 4.6.2
(a) furnish information any parties conducted heretofore with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income foregoing. Allied agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the assets (including equity securities) first sentence hereof of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result the obligations undertaken in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSection 6.9.
Appears in 1 contract
Samples: Merger Agreement (Allied Group Inc)
Acquisition Proposals. 4.6.1 Consumers (a) The Company shall not, nor and shall it authorize or permit any officercause its Subsidiaries and use its reasonable best efforts to cause its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries "Representatives") not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of 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 (as defined below) or (iiiii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regardingwith, or furnish to any person any information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person or (B) notify a person that has made or, to the knowledge of the Company, is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a); provided, howeverthat, that if, at any time prior to receipt of the approval of the Merger by the holders shareholders of the Consumers Common Shares (Company by the "Consumers Applicable Period")Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of Consumers determines the Company concludes in good faith, faith (after consultation with receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that it is necessary failure to do so in order to comply with take such actions would violate its fiduciary duties to Consumers' shareholders under applicable law; provided, Consumers mayfurther, in response that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have entered into a Superior Proposal (as defined in Section 4.7.1) confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which was confidentiality agreement shall not solicited by it provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or which did not otherwise result from a breach negotiations conducted before the date of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance Agreement with Section 4.6.2
(a) furnish information any person other than Purchaser with respect to Consumers any Acquisition Proposal. The Company will promptly (within one business day) advise Purchaser following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and its subsidiaries to any the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal, and copies of any proposed agreements, financing commitments, term sheets or letters of intent related thereto), and will keep Purchaser apprised on a Superior Proposal pursuant current basis of any related developments, discussions and negotiations, including any amendments to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding revisions of the material terms of such Superior inquiry or Acquisition Proposal. For purposes of As used in this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiaryshall 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 the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (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 the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company.
(b) Nothing contained in this Agreement shall prevent the Company or its Board 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 the Company's 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 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that (i) it and its employees, officers and directors shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of (ii) its subsidiaries toand its subsidiaries' employees, officers and directors shall not and (iii) it shall use reasonable best efforts to ensure that its and its subsidiaries' agents, accountants, consultants, financial and other advisors, investment bankers, attorneys, and representatives ("Representatives") shall not, (A) directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a tender offer or exchange offer, proposal for a merger, consolidation or other business combination involving the Company and its subsidiaries or any proposal or offer, in each case, to acquire in any manner 20% or more of the equity in the Company or any of its material subsidiaries or 20% or more of the assets of the Company and its subsidiaries taken as a whole, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or (B) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any person relating to an Acquisition Proposal or which may reasonably be expected to lead toto an Acquisition Proposal. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) prior to the approval of the Merger and this Agreement by the Company's shareholders by the Company Requisite Vote, providing access to its properties, books and records and providing information or data in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal not resulting from a breach of Section 6.5(a) if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement), (ii) prior to the approval of the Merger and this Agreement by the Company's shareholders by the Company Requisite Vote, engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal not resulting from a breach of Section 6.5(a) or (iii)(A) withdrawing, modifying or changing in any adverse manner its approval or recommendation of this Agreement or (B) recommending an unsolicited bona fide written Acquisition Proposal; if and only if in connection with the foregoing clauses, the Board of Directors of the Company shall have determined in good faith, after consultation with its legal counsel and financial advisors that (x) in the case of clause (iii) above only, such Acquisition Proposal constitutes a Superior Proposal and (y) in the case of clauses (i) and (ii) above only, as a result of such actions, such Acquisition Proposal will result in, or could reasonably be expected to constitute or result in, a Superior Proposal. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal; provided. The Company shall also (1) promptly (and in any event within 48 hours) notify Parent of the receipt of any Acquisition Proposal after the date hereof, howeverwhich notice shall include the identity of the person making such Acquisition Proposal and the material terms thereof (including any material modifications or amendment to such terms) and (2) keep Parent reasonably informed of the status and details of any such proposal or inquiry.
(b) Notwithstanding anything in this Section 6.5 to the contrary, that if, at any time prior to receipt of the approval of the Merger and this Agreement by the holders of Company's shareholders by the Consumers Common Shares (the "Consumers Applicable Period")Company Requisite Vote, the Company's Board of Directors of Consumers determines in good faith, after consultation with its financial advisors and outside legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which unsolicited and that did not otherwise result from a breach of Section 6.5(a), that such proposal is a Superior Proposal, the Company or its Board of Directors may terminate this Agreement; provided, however, that the Company shall not terminate this Agreement pursuant to this sentence, and any purported termination pursuant to this sentence shall be void and of no force or effect, unless the Company prior to or concurrently with such termination pursuant to this Section 4.66.5(b) pays to Parent the fee payable pursuant to Section 8.2(b) and enters into a definitive agreement concerning the Superior Proposal; and provided, and subject further, however, that the Company shall not exercise its right to providing prior terminate this Agreement pursuant to this Section 6.5(b) until after three business days following Parent's receipt of written notice (a "Notice of its decision to take such action to PSC (the "Consumers NoticeSuperior Proposal") (it being understood and compliance with Section 4.6.2
agreed that any amendment to the amount or form of consideration of the Superior Proposal shall require a new notice and a new three business day period) advising Parent that the Company's Board of Directors intends to cause the Company to accept such Superior Proposal, specifying the material terms and conditions of the Superior Proposal (a) furnish information with respect to Consumers and its subsidiaries to any person making it being understood that neither the delivery of a notice of a Superior Proposal nor any subsequent public announcement thereof shall constitute a violation of Section 6.5(a) or entitle Parent to terminate this Agreement pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselSection 8.1(e)) and (b) participate that the Company shall, during such three business day period, negotiate in discussions or negotiations regarding good faith with Parent to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal. For purposes .
(c) Notwithstanding anything in this Section 6.5 to the contrary, nothing in this Agreement shall prevent the Company or its Board of this AgreementDirectors from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to shareholders required to be made by applicable statute, "Acquisition Proposal" means any inquirylaw, proposal rule or offer from any person relating to any direct regulation in connection with the making or indirect acquisition or purchase amendment of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in offer) or from making any person beneficially owning 15% or more of legally required disclosure to shareholders with regard to any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementAcquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (Osmonics Inc)
Acquisition Proposals. 4.6.1 Consumers (a) The Foothills Parties shall, and shall notdirect and use their reasonable best efforts to cause their respective Subsidiaries and their and their respective Subsidiaries’ Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other advisor or representative of, Consumers retained by the Foothills Parties or any of their respective Subsidiaries) to, immediately cease and cause to be terminated any activities, discussions, or negotiations with any Person other than SmartFinancial and SmartBank 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 respective 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 Foothills Parties or any of their respective 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 and the termination of this Agreement in accordance with its subsidiaries terms, the Foothills Parties shall not, and shall direct and cause their respective Subsidiaries and their and their respective Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by the Foothills Parties or any of their respective Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate initiate, or encourage the submission (including by way of any Acquisition Proposal (as defined below) furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), 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, constitutes or may reasonably could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Foothills Parties or any of their respective Subsidiaries to any Person other than SmartFinancial and SmartBank relating to or in connection with 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 SmartFinancial and SmartBank, 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 Foothills 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 if, at any time prior to receipt the date of the approval of the Merger by the holders of the Consumers Common Shares Bancorp Meeting (the "Consumers Applicable Period"as defined below), if the Board Bancorp board of Directors of Consumers directors determines in good faith, after consultation with its outside counsellegal and financial advisors, that it is necessary the failure to do so in order would cause the Bancorp board of directors to comply with breach its fiduciary duties to Consumers' shareholders under applicable lawLaw, Consumers the Foothills Parties may, in response to a Superior bona fide, written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach in violation of this Section 4.67.1 that the Bancorp board of directors determines in good faith constitutes a Superior Proposal, and subject to providing 48 hours prior written notice of its their decision to take such action to PSC (SmartFinancial and identifying the "Consumers Notice") Person making the Superior Proposal and all of the material terms and conditions of such Superior Proposal and compliance with Section 4.6.2
7.1(c), (aA) furnish information with respect to Consumers the Foothills Parties and its subsidiaries their respective Subsidiaries to any person Person making a 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 (as determined by Consumers after consultation which confidentiality agreement shall not provide such Person the exclusive right to negotiate with its outside counselthe Foothills Parties) and (bB) participate in discussions or negotiations with such Person regarding such Superior Proposal.
(c) In addition to the obligations of the Foothills Parties set forth above, the Foothills Parties shall promptly (within not more than 24 hours) advise SmartFinancial orally and in writing of their receipt of any Acquisition Proposal, or any request for information or inquiry which could be expected to lead to an Acquisition Proposal, and shall keep SmartFinancial informed, on a current basis, of the continuing status thereof, including the terms and conditions thereof and any changes thereto, and shall provide to SmartFinancial any written materials received by the Foothills Parties or any of their Subsidiaries in connection therewith. Additionally, the Foothills Parties shall contemporaneously provide or make available to SmartFinancial 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 SmartFinancial.
(d) For purposes the avoidance of doubt, the Foothills Parties expressly agree that any breach or violation of any provision of this AgreementSection 7.1 by any of their respective Subsidiaries or by any of their or their respective Subsidiaries’ Affiliates, "Acquisition Proposal" means any inquirydirectors, proposal officers, employees, agents, or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets representatives (including equity securities) of Consumers and its subsidiarieswithout limitation any investment banker, taken as a wholefinancial advisor, attorney, accountant, or 15% or more of any class of voting securities of Consumers other representative retained by such Party or any of its subsidiaries owningSubsidiaries) shall be deemed a breach or violation of this Section 7.1 by the Foothills Parties.
(e) The Foothills Parties agree that irreparable damage would occur in the event any of the provisions of this Section 7.1 are breached or violated. Accordingly, operating it is agreed that SmartFinancial shall be entitled to an injunction or controlling a Material Business, any tender offer injunctions to prevent breaches or exchange offer that if consummated would result violations of this Section 7.1 and to enforce specifically the terms and provisions of this Section 7.1 in any person beneficially owning 15% state or more federal court having jurisdiction, this being in addition to any other remedy or relief to which SmartFinancial may be entitled at law or in equity.
(f) Nothing contained in this Section 7.1 shall prevent Bancorp or the Bank or their respective boards of directors from (i) taking the actions permitted by Section 7.7(b) of this Agreement or (ii) informing any class Person who submits an unsolicited Acquisition Proposal of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by their obligations pursuant to this AgreementSection 7.1.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any of its Subsidiaries nor any of its or their respective officers and directors shall, and that the Company shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) (such officers, directors, employees, agents and representatives sometimes collectively referred to herein as "Representatives") not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to an amalgamation, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of, 5% 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 lead as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers and directors shall, and that the Company shall direct and cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to, an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms equivalent to those contained in the Confidentiality Agreement (as defined in Section 9.7); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, at any time if and only to the extent that, prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares taking any such action (the "Consumers Applicable Period"i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers the Company determines in good faith, faith after consultation with receipt of a written opinion from its outside counsel, legal counsel experienced in such matters under applicable Law that it such action is necessary to do so in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable lawLaw and (ii) in each case referred to in clause (B) or (C) above, Consumers may, the Board of Directors of the Company determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction superior to the transaction contemplated by this Agreement (b) participate any such superior Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesforegoing. The Company agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement. The Company will notify Parent immediately (but, net income in any event, no less than 24 hours thereafter) if any Acquisition Proposal or the assets (including equity securities) of Consumers and its subsidiariesinquiry related thereto is received by, taken as a wholeany information is requested from, or 15% any discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, the Company or any of its subsidiaries owningRepresentatives relating to an Acquisition Proposal, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more indicating the name of such Person and the material terms and conditions of any class Acquisition Proposal and thereafter shall keep Parent informed, on a current basis, of voting securities the status and terms of Consumers any such Acquisition Proposal 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 to return all confidential information heretofore furnished to such Person by or on behalf of it or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementof its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers Seller agrees that neither it nor any of its Subsidiaries nor any of the respective officers and directors of Seller or its Subsidiaries shall, and Seller shall notdirect and use its best efforts to cause its employees, nor shall it authorize or permit any officeragents and representatives (including, director or employee ofwithout limitation, or any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, (a) initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer (including, without limitation, any proposal or offer to stockholders of Seller) with respect to a merger, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or any significant portion of the assets or any equity securities of, Seller or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"), or (b) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that ifnothing contained in this Agreement shall prevent Seller 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) (A) providing information in response to a request therefore by a person who has made an unsolicited BONA FIDE written Acquisition Proposal if the board of directors receives from the person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the confidentiality agreement between Purchaser and Seller, at or (B) engaging in any time prior negotiations or discussions with any person who has made an unsolicited BONA FIDE written Acquisition Proposal, if and only to receipt the extent that, in each such case referred to in clause (A) or (B) above, (i) the board of the approval directors of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faithSeller, after consultation with outside legal counsel, that it is in good xxxxx xxxxx such action to be legally necessary to do so in order to comply with for the proper discharge of its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, law and (ii) the board of directors of Seller determines in response to a Superior Proposal good faith (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and (b) participate regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in discussions or negotiations regarding such Superior Proposal. For purposes of a more favorable transaction than the transaction contemplated by this Agreement. Seller will notify Purchaser promptly if any such inquiries, "Acquisition Proposal" means proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with Seller after the date hereof, and the identity of the person making such inquiry, proposal or offer from and the substance thereof and will keep Purchaser informed of any person relating developments with respect thereto immediately upon occurrence thereof. If the board of directors of Seller shall determine in accordance with the second preceding sentence to provide confidential information or data to any direct other person, Seller shall do so only under the terms of a confidentiality agreement no less stringent than that previously entered into between the parties hereto and Seller shall enforce such agreement. Subject to the foregoing, Seller will immediately cease and cause to be terminated any existing activities, discussions or indirect acquisition negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will take the necessary steps to inform the appropriate individuals or purchase entities referred to in the first sentence hereof, with whom Seller or its Subsidiaries, employees, agent or representatives have had any contact with respect to the activities described in clause (a) of such sentence within the preceding six (6) months, of the obligations undertaken in this Section 4.01. Seller will promptly request each -29- such person (other than Purchaser) that has previously executed a confidentiality agreement in connection with its consideration of a business (a "Material Business") that constitutes 15% combination with Seller or more any Subsidiary of the net revenues, net income Seller to return or the assets (including equity securities) destroy all confidential information previously furnished to such person by or on behalf of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers Seller or any of its subsidiaries owningSubsidiaries. By virtue of the execution of this Agreement, operating or controlling Seller acknowledges that Purchaser is a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more third party beneficiary of any class of voting securities of Consumers or any and all confidentiality agreements entered into by Seller in the past six (6) months similar to the confidentiality agreement between the parties hereto, and Seller hereby agrees to enforce such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any agreements and to permit Purchaser to assist in such subsidiary, other than the transactions contemplated by this Agreementenforcement.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) Company shall not, nor and shall it authorize or permit any officercause its Subsidiaries and use its reasonable best efforts to cause its and their officers, director or employee ofdirectors, or any investment bankeragents, attorneyadvisors and representatives (collectively, or other advisor or representative of, Consumers or any of its subsidiaries “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of knowingly facilitate any Acquisition Proposal (as defined below) inquiries or proposals with respect to, (ii) knowingly engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or knowingly participate in any discussions or negotiations regardingwith, or furnish to any person relating to, any information 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 of the existence of the provisions of this Section 6.9(a); provided, that, prior to the receipt of the Requisite Company Vote, in the event Company receives an unsolicited bona fide written Company Acquisition Proposal, it may, and may permit its Subsidiaries 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 (A) 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 failure to take any other action such actions would reasonably be expected to facilitate any inquiries be inconsistent with its fiduciary duties under applicable law or (B) its Board of Directors concludes in good faith (after receiving the making advice of any proposal its outside counsel, and with respect to financial matters, its financial advisors), that such Acquisition Proposal constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1herein) and; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which was confidentiality agreement shall not solicited by it provide such person with any exclusive right to negotiate with Company. Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or which did not otherwise result from a breach negotiations conducted before the date of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance Agreement with Section 4.6.2
(a) furnish information any person other than Buyer with respect to Consumers any Company Acquisition Proposal. Company will promptly (and its subsidiaries in any event within one (1) business day) advise Buyer following receipt of any Company Acquisition Proposal or any inquiry which could reasonably be expected to any lead to a Company Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselsuch inquiry or Company Acquisition Proposal) and (b) participate in will keep Buyer reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or negotiations regarding revisions of the material terms of such Superior inquiry or Company Acquisition Proposal. For purposes of this AgreementCompany shall use its reasonable best efforts, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating subject to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more applicable law and the fiduciary duties of the net revenuesBoard of Directors of Company, net income to enforce any existing confidentiality or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers standstill agreements to which it or any of its subsidiaries owning, operating or controlling Subsidiaries is a Material Business, any tender offer or exchange offer that if consummated would result party in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than accordance with the transactions contemplated by this Agreementterms thereof.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that (i) it and its officers and directors shall not, nor and (ii) it shall it authorize or permit any officeruse commercially reasonable efforts to ensure that its representatives shall not, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries to, in each case (A) directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to the acquisition, including by way of a tender offer, exchange offer, merger, consolidation or other business combination, of (x) an equity interest representing a 10% or greater economic or voting interest in the Company, or may reasonably be expected (y) the assets, securities or other ownership interests of or in the Company representing 10% or more of the consolidated assets of the Company, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to lead as an (“Acquisition Proposal“), or (B) directly or indirectly, engage in any negotiations concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to, an Acquisition Proposal; provided, however, that ifthe Company and its representatives may, at any time prior in response to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), a written Acquisition Proposal that the Board of Directors of Consumers the Company determines, in good faith, after consultation with its financial advisors, constitutes, a Superior Proposal, and which Acquisition Proposal did not result from a material breach of this Section 6.4(a), (x) provide access or furnish information with respect to the Company to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) engage in discussions or negotiations with the Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company to withhold information where such disclosure would contravene any Law, the Company shall promptly provide to Parent any non-public information that is provided to the Person making such Acquisition Proposal or its representatives that was not previously provided to Parent or Merger Sub. The Company will, and will cause its agents and representatives to, promptly cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. The Company shall also promptly (within two (2) Business Days) notify Parent of the receipt of any Acquisition Proposal after the date hereof, which notice shall include the identity of the Person making such Acquisition Proposal and the material terms and conditions thereof, and will keep Parent apprised of any related material developments, discussions and negotiations related thereto. For purposes of this Agreement, the term “Superior Proposal“ means any offer made by a third party that the Board of Directors of the Company reasonably determines to be bona fide for a transaction that (a) if consummated, would result in such third party (or in the case of a direct merger between such third party and the Company, the stockholders of such third party) acquiring, directly or indirectly, more than 50% of the voting power of the Company Common Stock (or, in the case of a direct merger, the common stock of the resulting company) or all or substantially all the consolidated assets of the Company and its subsidiaries for consideration consisting of consideration payable to holders of shares of Company Common Stock that the Board of Directors of the Company determines in good faith, after consultation with outside counselits financial advisors, to be more favorable from a financial point of view to holders of Company Common Stock than the Merger taking into account the Termination Fee, and is reasonably likely to be consummated in accordance with its terms, taking into account all financial, regulatory, legal and other aspects of such offer and transaction (including the likelihood of completion) and any changes to the terms of this Agreement proposed by Parent in response to such Superior Proposal or otherwise.
(b) The Board of Directors of the Company shall not (i) withdraw or modify in a manner adverse to Parent or Merger Sub, or propose publicly to withdraw or modify in a manner adverse to Parent or Merger Sub, the Merger Recommendation or resolve or agree to take any such action (any such action or any such resolution or agreement to take such action being referred to herein as an “Adverse Recommendation Change“), unless the Board of Directors of the Company determines in good faith, after consultation with its legal advisors, that it is necessary the failure to do so take such action would result in order a breach of or be reasonably likely to comply with result in a breach of its fiduciary duties duties, (ii) recommend, adopt or approve any Acquisition Proposal or propose publicly to Consumers' shareholders under applicable lawrecommend, Consumers adopt or approve any competing Acquisition Proposal or resolve or agree to take any such action or (iii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (each, an “Acquisition Agreement“) constituting or related to, or which is intended to lead to any Acquisition Proposal (other than a confidentiality agreement) or resolve or agree to take any such action. Notwithstanding anything in this Section 6.4(b) to the contrary, the Board of Directors of the Company may, in response to a Superior Proposal, cause the Company to terminate this Agreement pursuant to Section 8.1(f) in order to concurrently enter into an Acquisition Agreement; provided, however, that the Company shall not terminate this Agreement pursuant to Section 8.1(f), and any purported termination pursuant to Section 8.1(f) shall be void and of no force or effect, unless the Company shall have complied with all the provisions of this Section 6.4, including the notification provisions in this Section 6.4, and with all applicable requirements of Section 8.3(b) in connection with such Superior Proposal; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to Section 8.1(f) until after the second Business Day following Parent’s receipt of written notice (a “Notice of Superior Proposal“) from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, identifying the Person making such Superior Proposal and the material terms and conditions of the Superior Proposal and stating that the Company Board intends to exercise its right to terminate this Agreement pursuant to Section 8.1(f) (it being understood and agreed that, prior to any such termination taking effect, (i) any amendment to the price or any other material term of a Superior Proposal shall require a new Notice of Superior Proposal (as defined but shall not trigger any new waiting period) and (ii) the Board of Directors of the Company shall discuss with Parent and take into account any changes to the terms of this Agreement proposed by Parent in response to such Superior Proposal or otherwise).
(c) Nothing contained in this Section 4.7.16.4 or elsewhere in this Agreement shall prohibit the Company from (i) which was not solicited taking and disclosing to its stockholders a position contemplated by it Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or which did not otherwise (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company, after receipt of advice from its outside counsel, failure so to disclose would result from in a breach of this Section 4.6, and subject or be reasonably like to providing prior written notice result in a breach of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions fiduciary duties or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementapplicable Law.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall The Company will not, nor and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to, and shall it authorize or permit any officerdirect its and its Subsidiaries' employees, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected 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 lead as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, 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 if, nothing contained in this Agreement 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 after 120 days from the date hereof if the Merger shall not by such date have been approved by the Company Requisite Vote (A) providing information in response to receipt a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the Confidentiality Agreement (as defined in Section 9.7); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such -37- 44 an Acquisition Proposal to the stockholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, (the "Consumers Applicable Period"i) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Consumers the Company determines in good faith, faith after consultation with outside counsel, legal counsel that it such action is necessary to do so in order for its directors to comply with its their respective fiduciary duties to Consumers' shareholders under applicable lawlaw and (ii) in each case referred to in clause (B) or (C) above, Consumers maythe Board of Directors of the Company determines in good faith (after 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 proposal and the Person making the proposal and would, if consummated, result in response a more favorable transaction than the transaction contemplated by this Agreement, taking into account the long-term prospects and interests of the Company and its stockholders (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement (as defined in Section 4.7.1) which was not solicited by it 9.7). The Company will notify Parent immediately if any such inquiries, proposals or which did not otherwise result from a breach of this Section 4.6offers are received by, and subject to providing prior written notice of its decision to take any such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to is requested from, or any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in such discussions or negotiations regarding are sought to be initiated or continued with, any of its representatives indicating, in connection with such Superior Proposal. For purposes notice, the name of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of such Person and the net revenues, net income or the assets (including equity securities) of Consumers material terms and its subsidiaries, taken as a whole, or 15% or more conditions of any class proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of voting securities any such proposals or offers and the status of Consumers 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 to return all confidential information heretofore furnished to such Person by or on behalf of it or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this AgreementSubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (American Bankers Insurance Group Inc)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any Subsidiary of the Company nor any of their respective officers or directors shall, and that it shall notdirect and use its best efforts to cause its and such Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by them or any of its subsidiaries the Company's Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation, purchase, or may reasonably be expected similar transaction involving more than 5% of the consolidated assets or any outstanding equity securities of the Company (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal") or (ii) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that ifnothing contained in this Agreement shall prevent the Company, at its directors, officers, agents or other representatives from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement; (C) engaging in any time prior negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending such an Acquisition Proposal to receipt the stockholders of the approval of Company, if and only to the Merger by the holders of the Consumers Common Shares extent that, (the "Consumers Applicable Period")i) in each such case referred to in clause (C) or (D) above, the Board of Directors of Consumers the Company determines in good faith, faith (after consultation with outside legal counsel, ) that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision failure to take such action would, in the absence of the foregoing proscriptions, be inconsistent with the fiduciary duties of the directors under applicable law and (ii) in the case referred to PSC in clause (D) above, the "Consumers Notice") and compliance with Section 4.6.2
Board of Directors of the Company determines in good faith (a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counselfinancial advisor) that such Acquisition Proposal, if consummated, would result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (being a cash offer superior to the transaction contemplated by this Agreement by no less than 15% of the aggregate Merger Consideration) (such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and (b) participate in cause to be terminated any existing activities, discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means with any inquiry, proposal or offer from any person relating parties conducted heretofore with respect to any direct Acquisition Proposals. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenuesoffers are received by, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a wholeany such information is requested from, or 15% any such discussions or more of any class of voting securities of Consumers negotiations are sought to be initiated or continued with, any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementrepresentatives.
Appears in 1 contract
Samples: Merger Agreement (Baltek Corp)
Acquisition Proposals. 4.6.1 Consumers shall (a) Merchants agrees that it will not, nor shall it authorize or permit any officerand will cause its Subsidiaries and its Subsidiaries’ respective directors, director or employee ofofficers, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries employees and Representatives not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) knowingly facilitate inquiries or proposals with respect to, (ii) continue, engage or participate in any negotiations concerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any Person (other than Persons who are Affiliates or negotiations regarding, Representatives of Merchants or furnish to any person any information with respect Community) relating to, or take any other action (iv) except as expressly permitted by Section 4.5(a), approve, recommend, agree to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toaccept, any Acquisition Proposal; provided, howeverthat, prior to, but not after, the time the Merchants Stockholder Approval is obtained, if Merchants receives an unsolicited bona fide Acquisition Proposal after the date of this Agreement that ifwas not received in violation of clauses (i) — (iv) above, at any time prior and Merchants’ Board of Directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to receipt of result in a Superior Proposal, Merchants may, and may permit its directors, officers, employees and Representatives to, furnish or cause to be furnished nonpublic information or data to and participate in such negotiations or discussions with the approval of Person making such Acquisition Proposal to the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), extent that the Board of Directors of Consumers determines Merchants concludes in good faithfaith (after receiving the advice of its outside counsel and, after consultation with outside counselrespect to financial matters, its financial advisor) that it is necessary failure to do so in order to comply take such actions would be inconsistent with its fiduciary duties to Consumers' shareholders under applicable lawLaw; provided further, Consumers maythat prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Merchants shall have entered into an Acceptable Confidentiality Agreement and shall provide to Community any such information not previously provided to Community. Notwithstanding anything to the contrary contained in response this Agreement, Merchants and its Representatives may (without any determination by the Board of Directors of Merchants or consultation with outside counsel or its financial advisor) (x) following receipt of an unsolicited bona fide Acquisition Proposal after the date of this Agreement and prior to the time the Merchants Stockholder Approval is obtained that was not received in violation of clauses (i) — (iv) above, contact such third party solely in order to clarify and understand the terms and conditions of such Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal and/or (as defined y) direct any Person who makes an Acquisition Proposal or who expresses interest to Merchants in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach making an Acquisition Proposal to this Agreement, including the provisions of this Section 4.64.12. Merchants will immediately cease and cause to be terminated any activities, and subject to providing prior written notice discussions or negotiations conducted before the date of its decision to take such action to PSC (the "Consumers Notice") and compliance this Agreement with Section 4.6.2
(a) furnish information any Persons other than Community with respect to Consumers any Acquisition Proposal. Merchants shall use its reasonable best efforts, subject to 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 Community and its subsidiaries Affiliates and its and their Representatives) pursuant to any person making existing confidentiality, standstill or similar agreements to which it or any of its Subsidiaries is a Superior Proposal pursuant party relating to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and an Acquisition Proposal.
(b) participate Merchants shall promptly, and in any event within twenty four (24) hours of receipt, advise Community in writing in the event Merchants or any of its directors, employees, officers or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal or (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Community with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). Merchants shall keep Community informed (orally and in writing) in all material respects on a timely basis of the status and details (including, within twenty four (24) hours after the occurrence of any amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, Merchants shall promptly (and in any event within twenty four (24) hours) notify Community orally and in writing if it determines to begin providing information or to engage in discussions or negotiations regarding concerning an Acquisition Proposal and shall in no event begin providing such Superior Proposal. For purposes information or engaging in such discussions or negotiations prior to providing such notice.
(c) Neither the Board of Directors of Merchants nor any committee thereof shall, except as expressly permitted by Section 4.5(a), (i) (A) withdraw (or modify or qualify in any manner adverse to Community) the approval, recommendation or declaration of advisability by the Board of Directors of Merchants or any such committee of this Agreement, "the Merger, or any of the other transactions contemplated hereby, (B) recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal" means , (C) resolve, agree or propose to take any inquiry, proposal such actions or offer from any person relating (D) submit this Agreement to any direct its stockholders without recommendation (each such action set forth in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or indirect acquisition (ii) (A) cause or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers permit Merchants or any of its subsidiaries owningSubsidiaries to enter into any letter of intent, operating memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or controlling a Material Businessother Contract constituting or relating to, or which is intended to or is reasonably likely to lead to, any tender offer Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 4.12(a)) or exchange offer that if consummated would result in any person beneficially owning 15% (B) resolve, agree or more of any class of voting securities of Consumers or propose to take any such subsidiaryactions.
(d) Merchants agrees that any breach by its directors, officers, employees, Affiliates or Representatives of this Section 4.12 shall be deemed a breach by Merchants.
(e) Nothing contained in this Agreement shall prevent Merchants or its Board 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; provided, that such rules will in no way eliminate or modify the effect that any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any action pursuant to such subsidiary, other than the transactions contemplated by rules would otherwise have under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, a “stop, look and listen” communication shall not be deemed an Adverse Recommendation Change if the Board of Directors of Merchants publicly states that the Merchants Directors’ Recommendation has not changed or refers stockholders to the Merchants Directors’ Recommendation.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may reasonably be expected any purchase of all or 10% or more of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any 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 its board of directors from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (as defined in Section 9.7), except that such confidentiality agreement may provide that such Person shall not be prohibited from submitting an Acquisition Proposal to the board of directors of the Company; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending such an Acquisition Proposal to the stockholders 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 board of directors of the Company determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) in each case referred to in clause (C) or (D) above, the board of directors of the Company determines in good faith (after 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 proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any of its Subsidiaries to return all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(b) Notwithstanding anything in this Section 6.2 to the contrary, if, at any time prior to receipt of obtaining the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period")Company Requisite Vote, the Board Company's board of Directors of Consumers directors determines in good faith, after consultation with on the basis of the advice of its financial advisors and outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which unsolicited and that did not otherwise result from a breach of Section 6.2(a), that such proposal is a Superior Proposal, the Company or its board of directors may terminate this Agreement if, and only if, the Company shall substantially concurrently with such termination enter into a definitive agreement containing the terms of a Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to this sentence, and any purported termination pursuant to this sentence shall be void and of no force or effect, unless the Company shall have complied with (i) all the provisions of this Section 4.66.2, and subject to providing prior written notice of its decision to take such action to PSC including the notification provisions in this Section 6.2, (ii) the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementfollowing proviso, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.and
Appears in 1 contract
Samples: Merger Agreement (Ing Groep Nv)
Acquisition Proposals. 4.6.1 Consumers (a) Each Party shall, and shall notdirect and use its reasonable best efforts to cause its Subsidiaries and its and its Subsidiaries’ Affiliates, nor shall it authorize or permit any officerdirectors, director or employee ofofficers, or employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other advisor or representative of, Consumers retained by such Party or any of its subsidiaries Subsidiaries) to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any Person other than the other Parties hereto with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and use its reasonable best efforts to cause its Subsidiaries to use their reasonable best efforts to enforce, any confidentiality 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 such Party 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, each Party shall not, and shall direct and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate initiate, or encourage the submission (including by way of any Acquisition Proposal (as defined below) furnishing information or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), 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, constitutes or may reasonably could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding such Party or any of its Subsidiaries to any Person other than the other Parties hereto relating to or in connection with 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 other Parties hereto, 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 such Party to abandon, terminate, or fail to consummate the transactions contemplated hereby, 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 if, at any time (y) prior to receipt the date of the approval SmartFinancial Meeting, if the SmartFinancial board of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers directors determines in good faith, after consultation with its outside counsellegal and financial advisors, that it is necessary the failure to do so in order would cause the SmartFinancial board of directors to comply with breach its fiduciary duties to Consumers' shareholders under applicable lawLaw, Consumers SmartFinancial and SmartBank may, in response to a Superior bona fide, written Acquisition Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach in violation of this Section 4.67.1 that the SmartFinancial board of directors determines in good faith constitutes a Superior SmartFinancial Proposal, and subject to providing 48 hours prior written notice of its their decision to take such action to PSC (the "Consumers Notice") Cornerstone Parties and identifying the Person making the Superior SmartFinancial Proposal and all of the material terms and conditions of such Superior SmartFinancial Proposal and compliance with Section 4.6.2
7.1(c), (a1) furnish information with respect to Consumers SmartFinancial and its subsidiaries SmartBank and their Subsidiaries to any person Person making a such Superior SmartFinancial Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement, and (b2) participate in discussions or negotiations with such Person regarding such Superior SmartFinancial Proposal. For purposes , and (z) 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, Bancshares and Cornerstone 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 Bancshares Proposal, 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 Bancshares Proposal and all of the material terms and conditions of such Superior Bancshares Proposal and compliance with Section 7.1(c), (1) furnish information with respect to Bancshares and Cornerstone and their Subsidiaries to any Person making such Superior Bancshares Proposal pursuant to a customary confidentiality agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement, "and (2) participate in discussions or negotiations with such Person regarding such Superior Bancshares Proposal.
(c) In addition to the obligations of the Parties set forth above, each Party shall promptly (within not more than 24 hours) advise the other Parties orally and in writing of its receipt of any Acquisition Proposal" means , or any inquiryrequest for information or inquiry which could be expected to lead to an Acquisition Proposal, proposal or offer from any person relating to any direct or indirect acquisition or purchase of and shall keep the other Parties informed, on a business (a "Material Business") that constitutes 15% or more current basis, of the net revenuescontinuing status thereof, net income or including the assets (including equity securities) of Consumers terms and its subsidiariesconditions thereof and any changes thereto, taken as a whole, or 15% or more of and shall provide to the other Parties any class of voting securities of Consumers written materials received by such Party or any of its subsidiaries owningSubsidiaries in connection therewith. Additionally, operating each Party shall contemporaneously provide or controlling a Material Businessmake available to the other 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 such other Parties.
(d) For the avoidance of doubt, each Party expressly agrees that any tender offer breach or exchange offer that if consummated would result in violation of the provisions of this Section 7.1 by any person beneficially owning 15% of its Subsidiaries or more by any of its or its Subsidiaries’ Affiliates, directors, officers, employees, agents, or representatives (including without limitation any class of voting securities of Consumers investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) shall be deemed a breach or violation of this Section 7.1 by such subsidiaryParty.
(e) Nothing contained in this Section 7.1 shall prevent a Party or such Party’s board of directors from (i) taking the actions permitted by Section 7.8(b) and Section 7.9(b) of this Agreement or (ii) informing any Person who submits an unsolicited, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any bona fide Acquisition Proposal of such subsidiary, other than the transactions contemplated by Party’s obligations pursuant to this AgreementSection 7.1.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall notNone of Greate Bay, Seller or the Company shall, nor shall it they authorize or permit any of their respective Affiliates or direct or indirect subsidiaries to, nor shall any such Affiliate or subsidiary authorize or permit any officer, director or employee ofdirector, or any investment bankerstockholder, attorney, or other advisor agent or representative of, Consumers or any of its subsidiaries to, thereof to directly or indirectly, (i) indirectly solicit, initiate or encourage seek from any third person (a "THIRD PERSON") the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person 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, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition ProposalACQUISITION PROPOSAL" means any inquiry, proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution share exchange or similar transaction involving Consumers the Company, or any such subsidiarypurchase of all or any significant portion of the assets of the Company, or any equity or other ownership interest in or control of the Company, other than the transactions contemplated by hereby with Buyer. Notwithstanding the foregoing, nothing contained in this Agreement or elsewhere shall prevent Greate Bay or Seller, or any of their respective direct or indirect subsidiaries, (consistent with the fiduciary duties of the Debtors to obtain the highest and best offer for the Shares), from (a) cooperating with or responding to unsolicited inquiries from, or negotiating with, any Third Person who expresses, or has expressed, prior to the date hereof, interest in an Acquisition Proposal, including granting to such Third Person access to the books, records and documents pertaining to the Debtors and the assets which are the subject of this Agreement; (b) responding to unsolicited inquiries submitted by Third Persons, subject, however, to the provisions of this Section 6.4; (c) providing notice of the transactions contemplated hereby to all creditors and parties in interest and any and all Third Persons who have heretofore expressed an interest in an Acquisition Proposal; (d) cooperating, negotiating or entering into an agreement with any Third Person that expresses or has expressed an interest in an Acquisition Proposal on terms more favorable to the Debtors, as determined by the boards of directors of the Debtors, than those contained in this Agreement or (e) complying in all respects with an order of the Bankruptcy Court.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers (a) The Company agrees that it and its subsidiaries shall not, nor and that it shall it authorize use its commercially reasonable efforts to ensure that none of its or permit any officerits subsidiaries’ respective officers, director or employee ofdirectors, or any investment bankerbankers, attorneyfinancial advisors, attorneys, accountants, consultants or other advisor agents, advisors or representative ofrepresentatives (collectively, Consumers or any of its subsidiaries tothe “Company Representatives”) shall, directly or indirectly, take any of the following actions:
(i) initiate, solicit, initiate encourage or encourage knowingly facilitate any inquiry, proposal or offer, or the making, submission or reaffirmation of any inquiry, proposal or offer (including any proposal or offer to the Company’s stockholders), that constitutes or would reasonably be expected to lead to an Acquisition Proposal (as defined below) or );
(ii) participate engage in any negotiations or discussions or negotiations regardingconcerning, or furnish provide access to any properties, books and records, or any confidential information or data, of the Company or any of its subsidiaries to any person relating to or in connection with, any information Acquisition Proposal;
(iii) take any action to render the Company Rights inapplicable to any Acquisition Proposal or the transactions contemplated thereby, exempt or exclude any person from the applicability of the Company Rights in connection with respect toany Acquisition Proposal or the transactions contemplated thereby or, other than as contemplated by this Agreement in connection with the Merger, allow the Company Rights to expire prior to the expiration date, or take any other action to facilitate exempt any inquiries person (other than Parent or its affiliates) from the making restrictions on “business combinations”, “control share acquisitions” or “take-over bids” contained in Chapters 110F, 110D or 110C of the Massachusetts General Laws, respectively, or otherwise cause such restrictions not to apply; or
(iv) waive, terminate, modify or fail to enforce any provision of any proposal that constitutes, contractual “standstill” or may reasonably be expected to lead to, similar obligation of any Acquisition Proposalperson (other than Parent or its affiliates); provided, however, that, if requested to do so by a third party who has contacted the Company to inform it that ifit desires to make an unsolicited bona fide Acquisition Proposal, at any time prior but would be unable to receipt do so without a waiver or modification of its existing standstill provisions, the approval of the Merger by the holders of the Consumers Common Shares Company may waive, modify or fail to enforce such standstill provisions (the "Consumers Applicable Period"), A) if the Board of Directors of Consumers determines the Company shall have determined in good faith, after consultation with outside its legal counsel, that it is necessary failure to do so take such action would reasonably be expected to result in order to comply with a breach of its fiduciary duties to Consumers' shareholders stockholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6Law, and subject (B) solely to providing prior written notice the extent necessary and for the limited purpose of its decision permitting such third party to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "submit an unsolicited bona fide Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) From and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII hereof, nor shall it authorize or permit none of RLBI, any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers of its Subsidiaries or any of its subsidiaries totheir respective directors, officers, employees, investment bankers, financial advisors, counsel, accountants, representatives or agents, shall, directly or indirectly, : (i) make, encourage, facilitate, solicit, induce, assist or initiate any inquiry or encourage proposal, or participate in any negotiations with, or knowingly provide any information to, any corporation, partnership, agent, attorney, financial advisor, or other Person (other than the submission Company, an affiliate of the Company or an officer, employee or other authorized representative of the Company or such affiliate, or counsel for the Company or its directors and financial advisor, solely for use in connection with the transactions contemplated hereby) relating to any Acquisition Proposal Proposal; (as defined belowii) knowingly furnish any information to any Person in connection with, or participate in any negotiations with respect to, or knowingly take any other action designed to facilitate, any Acquisition Proposal; or (iiiii) participate in any discussions or negotiations regarding, or furnish to any person 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, regarding any Acquisition Proposal; provided, however, that ifRLBI make such disclosures that are necessary to comply with its disclosure obligations under federal or state law, and if at any time prior to receipt of the approval of the Merger this Agreement by the holders shareholders of the Consumers Common Shares (the "Consumers Applicable Period")RLBI, the RLBI Board of Directors of Consumers determines in good faith, after consultation with receipt of advice from outside counsel, that it is necessary the failure to do so provide such information or to participate in order to comply such negotiations or discussions would likely be inconsistent with its fiduciary duties to Consumers' the shareholders of RLBI under applicable law, Consumers RLBI may, in response to a Superior Proposal (as defined in Section 4.7.1) which proposal that was not solicited by it or which and that did not otherwise result from a breach of this Section 4.66.06(a), and that has been determined by the RLBI Board to be a Superior Proposal, subject to providing prior RLBI giving the Company at least two (2) Business Days' written notice of its decision intention to take such action to PSC do so, (the "Consumers Notice") and compliance with Section 4.6.2
(ax) furnish information with respect to Consumers and its subsidiaries RLBI to any person making a Superior Proposal Person pursuant to a customary confidentiality agreement provided that a copy of all such information is delivered simultaneously to the Company, and (y) participate in negotiations regarding such proposal. RLBI shall as determined by Consumers after consultation promptly as practicable notify the Company in writing of any inquiry, request for information or any proposal in connection with its outside counsela Acquisition Proposal, the material terms and conditions of such request or proposal (including a copy of any written inquiry or proposal, or a written summary of any verbal inquiry or proposal, as the case may be) and the identity of the Person making such request or proposal. RLBI will keep the Company reasonably informed of the status and material details (including amendments or proposed amendments) of such request or proposal on a current basis, and will respond promptly in writing to any reasonable inquiry by the Company concerning the foregoing. RLBI shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore by RLBI or its representatives with respect to the foregoing.
(b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means shall mean, whether in the form of an actual or intended proposal to or from a completed action by or other communication with, as the case may be, any inquiry, proposal Person (or offer from any person relating to any direct or indirect acquisition or purchase group of a business Persons) other than the Company and its Subsidiaries (a "Material BusinessAcquisition Party"), any of: (i) that constitutes 15a merger (whether or not RLBI is the surviving corporation) or consolidation, or any similar transaction (other than the Merger) of any company with either RLBI or any of its Subsidiaries; (ii) a purchase, lease or other acquisition of all or substantially all the assets of either RLBI or any of its Subsidiaries; (iii) a purchase or other acquisition, in one or a series of related transactions, of "beneficial ownership" by any "person" or "group" (as such terms are defined in Section 13(d)(3) of the Exchange Act) (including by way of merger, consolidation, share exchange or otherwise) which would cause such Person or group to become the beneficial owner of securities representing 10% or more of the net revenues, net income voting power of either RLBI or the assets Bank; (including equity securitiesiv) of Consumers and its subsidiaries, taken as a whole, tender or 15exchange offer to acquire securities representing 10% or more of the voting power of RLBI; (v) a public proxy or consent solicitation made to the shareholders of RLBI seeking proxies in opposition to any class proposal relating to any aspect of voting securities of Consumers or any of its subsidiaries owning, operating or controlling the Merger that has been recommended by the RLBI Board; (vi) a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers recapitalization of RLBI or any such subsidiary, other than the transactions contemplated by this Agreement.Bank;
Appears in 1 contract
Samples: Merger Agreement (Northern States Financial Corp /De/)
Acquisition Proposals. 4.6.1 Consumers shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries toThe Company may, directly or indirectly, furnish information and access, in each case in response to unsolicited requests therefor received after the date of this Agreement, with appropriate assurances of confidentiality, to any corporation, partnership, person or other entity or group, and, in response to unsolicited requests, may participate in discussions and negotiate with any corporation, partnership, person or other entity or group concerning a proposal for any merger, sale of any material assets of the Company, sale of shares of voting capital stock of the Company having over 15 percent of the aggregate voting power of all the Company's capital stock or other transaction involving the transfer of effective control of the Company or any division thereof (i) "Acquisition Proposal"), if the Company's Board of Directors, after consultation with its outside counsel and its financial advisor, and such other advisors as it deems appropriate, determines in its good faith judgment that its fiduciary duties require such action. In addition, in the event of such determination by the Company's Board of Directors, the Company may direct its officers and other appropriate personnel to cooperate with and be reasonably available to consult with any such corporation, partnership, person or other entity or group. Except as set forth above, neither the Company, or any of its Subsidiaries, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any or initiate discussions or negotiations regardingwith, or furnish to any person provide any information with respect to, any corporation, partnership, person or other entity or group (other than the Purchaser, any affiliate or associate of the Purchaser or any designees of the Purchaser) concerning any Acquisition Proposal, or take any other action to facilitate any inquiries or the making of any a proposal that constitutes, constitutes or may could reasonably be expected to lead to, any to an Acquisition Proposal; provided. Without limiting the foregoing, however, it is understood that if, at any time prior to receipt violation of the approval restrictions set forth in the preceding sentence by any executive officer of the Merger by the holders Company or any of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary its subsidiaries shall be deemed to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from be a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement.7.4
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall South agrees that it will not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any and will cause each of its subsidiaries Subsidiaries and controlled affiliates not to, and will use its reasonable best efforts to cause each of its respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a “Representative”) not to, directly or indirectly, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage knowingly facilitate (including by way of furnishing information), or take any other action designed to facilitate, any inquiries, requests for nonpublic information, offers or proposals that contemplate or otherwise relate to or could reasonably be expected to lead to any Alternative Transaction (any of the submission of any foregoing being referred to herein as an “Acquisition Proposal (as defined below) or Proposal”), (ii) participate in any discussions or negotiations regarding, regarding an Alternative Transaction or Acquisition Proposal or (iii) furnish any information regarding itself or any of its Subsidiaries to any person any information in connection with respect to, or take any other action in response to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided. Notwithstanding the preceding sentence, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers mayRequisite South Vote, in response to a Superior the event that South receives an Acquisition Proposal (as defined in Section 4.7.1) which that was not solicited by it or which and did not otherwise result from a breach of or any action inconsistent with this Section 4.66.11, and subject that the Board of Directors of South determines, in its good faith judgment, after receiving the advice of outside counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes or would reasonably be expected to providing prior written notice result in, a Superior Proposal (and such proposal has not been withdrawn), if and only if, the Board of Directors of South determines, in its decision good faith judgment, after receiving the advice of outside counsel and a financial advisor of nationally recognized reputation, that failure to take such action to PSC any of the actions described in the following clauses (the "Consumers Notice"A) and compliance (B) would be inconsistent with Section 4.6.2
its fiduciary duties under applicable Law, South and its Representatives may (aA) furnish information with respect to Consumers it and its subsidiaries Subsidiaries to any person the party making a Superior such Acquisition Proposal and its Representatives and financing sources pursuant to a customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the terms contained in the Confidentiality Agreement, provided that a copy of all such written information is provided simultaneously to North (as determined by Consumers after consultation with its outside counsel) if not previously provided), and (bB) participate in discussions or and negotiations regarding such Superior Acquisition Proposal. For purposes Without limiting the foregoing, any violation of the restrictions contained in this Section 6.11 by any Subsidiary or Representative of South, shall be deemed a breach of this Section 6.11 by South.
(a) As used in this Agreement, "Acquisition Proposal" means any inquiry“Alternative Transaction” shall mean, proposal or offer from any person relating with respect to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiarySouth, other than the transactions contemplated by this Agreement, (i) the acquisition (whether by merger, consolidation, equity investment, joint venture, issuance of securities, reorganization, tender offer, sale, license, disposition or otherwise) by any person or “group” as defined in the Exchange Act of 15% or more of the assets of South or any of its Subsidiaries; (ii) the acquisition in any manner, directly or indirectly, by any person or “group” of 15% or more of any class of the issued and outstanding shares of capital stock of South or any of its Subsidiaries; (iii) the issuance of 15% or more of the current number of issued and outstanding shares of any class of capital stock of South or any of its Subsidiaries; or (iv) any purchase, acquisition, tender offer or exchange offer that, if consummated, would result in any person (or the stockholders of any person) or “group” becoming the beneficial owner of 15% or more of any class of equity or voting securities of South or any of its Subsidiaries whose assets individually or in the aggregate, constitute 15% or more of the consolidated assets of South and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (First Citizens Bancshares Inc /De/)
Acquisition Proposals. 4.6.1 Consumers (a) Until this Agreement has been terminated in accordance with Section 7.1 (and the payments, if any, required to be made in connection with such termination pursuant to Section 7.2(b) have been made) and subject to applicable public disclosure requirements of (i) The NASDAQ Global Market and (ii) applicable securities Laws, the Company shall not, nor and shall it not authorize or permit any officer, director or employee of, or any investment banker, attorney, or other advisor or representative of, Consumers or any of its subsidiaries Subsidiaries to, and shall cause its and its Subsidiaries’ officers, directors, employees, consultants, representatives and other agents, including investment bankers, attorneys, accountants and other advisors (collectively, the “Representatives”), not to, directly or indirectly, (i1) solicit, solicit or initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect tomaking of, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal (including, without limitation, taking any action to make the provisions of any “moratorium”, “control share acquisition”, “fair price”, “affiliate transaction”, “business combination” or other antitakeover laws and regulations of any state, including, without limitation, the provisions of subtitle 7 of Title 3 of the MGCL inapplicable to any transactions contemplated by an Acquisition Proposal; provided), however(2) participate in any way in discussions or negotiations with, that ifor furnish or disclose any non-public information to, any Person (other than Parent or any of its Representatives) in connection with any Acquisition Proposal, (3) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights with respect to the divestiture of the voting securities or any material portion of the assets of the Company (except for any such agreement with Parent or any of its Subsidiaries), (4) effect a Change in the Company Recommendation, (5) approve or recommend, or publicly announce it is considering approving or recommending, any Acquisition Proposal or (6) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Acquisition Proposal. Notwithstanding the foregoing, at any time prior to receipt the time that the Company Requisite Stockholder Vote is obtained, the Company and its Representatives may:
(i) participate in discussions or negotiations with, or furnish or disclose nonpublic information to, any Person or any Person’s Representatives in response to an unsolicited, bonafide and written Acquisition Proposal that is submitted to the Company by such Person after the date of this Agreement and prior to the time that the Company Requisite Stockholder Vote is obtained if and so long as (A) none of the approval Company, any of its Subsidiaries or any of the Merger by the holders Representatives of the Consumers Common Shares Company or any of its Subsidiaries has solicited such Acquisition Proposal or otherwise violated any of the provisions of this Section 5.5, (B) a majority of the "Consumers Applicable Period"), members of the Board of Directors of Consumers the Company determines in good faith, after consultation with a nationally recognized financial advisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (C) a majority of the members of the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that not to take such action would be inconsistent with their duties to the Company and the Company’s stockholders under applicable Law, (D) at least one Business Day prior to participating in discussions or negotiations with, or furnishing or disclosing any nonpublic information to, such Person, the Company provides Parent with written notice of the identity of such Person and of the Company’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such Person, (E) prior to participating in discussions or negotiations with, or furnishing or disclosing any nonpublic information to, such Person, the Company receives from such Person an executed confidentiality agreement containing terms no less restrictive upon such Person, in any respect, than the terms applicable to Parent under the Confidentiality Agreement, which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with the Company or have the effect of prohibiting the Company from satisfying its obligations under this Agreement, and (F) at least one Business Day prior to furnishing or disclosing any nonpublic information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously delivered or made available by the Company to Parent);
(ii) effect a Change in Company Recommendation so long as a majority of the members of the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action would be inconsistent with their duties to PSC (the "Consumers Notice") Company and compliance with Section 4.6.2the Company’s stockholders under applicable Law; and
(aiii) furnish information approve or recommend, or enter into, a definitive agreement with respect to Consumers an unsolicited, bonafide written Acquisition Proposal that is submitted to the Company after the date of this Agreement and prior to the time that the Company Requisite Stockholder Vote is obtained if and so long as (A) none of the Company, any of its subsidiaries Subsidiaries or any of the Representatives of the Company or any of its Subsidiaries has violated any of the provisions of this Section 5.5, (B) the Company provides Parent with written notice indicating that the Board of Directors of the Company, acting in good faith, believes that the Acquisition Proposal is reasonably likely to any person making lead to a Superior Proposal, (C) during the three Business Day period after the Company provides Parent with the written notice described in clause (B) above, the Company shall cause its financial and legal advisors to negotiate in good faith with Parent (to the extent Parent wishes to negotiate) in an effort to make such adjustments to the terms and conditions of this Agreement such that the Acquisition Proposal would not constitute a Superior Proposal, (D) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, the Board of Directors of the Company makes the determination necessary for such Acquisition Proposal to constitute a Superior Proposal at least three Business Days after the Company provides Parent with the written notice referred to in clause (B) above, (E) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, at least three Business Days after the Company provides Parent with the written notice referred to in clause (B) above, a customary confidentiality agreement (as determined by Consumers majority of the members of the Board of Directors of the Company determine in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with their duties to the Company and the Company’s stockholders under applicable Law, (F) at least three Business Days after the Company provides Parent with the written notice described in clause (B) above, the Board of Directors of the Company has determined that such Acquisition Proposal remains a Superior Proposal and (G) not later than the earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, any such Superior Proposal, the Company (I) terminates this Agreement pursuant to Section 7.1(h), (II) makes the payment of the Termination Fee required to be made pursuant to Section 7.2(b) and (III) delivers to Parent a written certification duly executed from each other party to such Superior Proposal pursuant to which each such other party certifies that it is aware of the amount payable under Section 7.2(b) and that it waives any right that it may have to contest the amount so payable.
(b) participate In addition to the obligations of the Company set forth in Section 5.5(a), within one Business Day of the receipt thereof, the Company shall provide Parent with written notice of (i) any request for information, any Acquisition Proposal or any inquiry, proposal, discussions or negotiations regarding with respect to any Acquisition Proposal, (ii) the material terms and conditions of such Superior request, Acquisition Proposal, inquiry, proposal, discussions or negotiations and (iii) the identity of the Person making any such Acquisition Proposal or such request, inquiry or proposal or with whom such discussions or negotiations are taking place, and shall provide Parent with copies of any written materials received by the Company in connection with any of the foregoing. The Company shall keep Parent informed of the status and general progress (including amendments or proposed amendments to any material terms) of any such request or Acquisition Proposal and keep Parent informed as to the material details of any information requested of or provided by the Company and as to the material details of all discussions or negotiations. Without limiting the Company’s obligations under Section 5.5(a), the Company shall provide Parent with notice at least one Business Day prior to (or such lesser notice, which may be none, as is provided to the members of the Board of Directors of the Company) any meeting of the Board of Directors of the Company at which the Board of Directors is reasonably expected to discuss or consider any Acquisition Proposal.
(c) The Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease all discussions or negotiations, if any, with any Person other than Parent and its Subsidiaries that may be ongoing as of the date of this Agreement with respect to any Acquisition Proposal. For purposes The Company shall promptly request each Person who has heretofore executed a confidentiality agreement in connection with its consideration of this Agreement, "Acquisition Proposal" means acquiring the Company or any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets portion thereof (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owningSubsidiaries) to return or destroy all nonpublic information heretofore furnished to such Person by or on behalf of the Company.
(d) Nothing contained in this Section 5.5 shall prohibit the Company from complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with respect to an Acquisition Proposal, operating provided that such Rules shall in no way eliminate or controlling a Material Business, modify the effect that any tender offer or exchange offer that if consummated action pursuant to such Rules would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by otherwise have under this Agreement.
(e) Any violation of this Section 5.5 by the Company’s Subsidiaries or the Representatives of the Company or its Subsidiaries shall be deemed to be a breach of this Agreement by the Company, whether or not such Subsidiaries or Representative is authorized to act and whether or not such Subsidiaries or Representative is purporting to act on behalf of the Company.
Appears in 1 contract
Acquisition Proposals. 4.6.1 Consumers shall not(a) Stratex agrees that neither it nor any of its Subsidiaries nor any of their respective officers, nor shall it authorize or permit directors, employees, agents and representatives (any officersuch Persons, director or employee of, or including any investment banker, attorneyattorney or accountant, or other advisor or representative of, Consumers or any of its subsidiaries toa “Representative”) shall, directly or indirectly, initiate, solicit, encourage or facilitate any inquiries or the making or implementation of any proposal or offer with respect to (i) solicita merger, initiate consolidation, share exchange, reorganization or encourage the submission of any Acquisition Proposal (as defined below) or other business combination transaction involving Stratex, (ii) any acquisition of any equity or other ownership interests in Stratex or any of its Subsidiaries representing, in the aggregate, 15% or more of the total voting power or economic interest of all of the outstanding equity or other ownership interest in Stratex or an economic interest of equivalent value in any Subsidiary of Stratex or (iii) any acquisition of assets of Stratex or any of its Subsidiaries representing 15% or more of the total assets of Stratex and its Subsidiaries, taken as a whole (any such inquiry, proposal or offer being hereinafter referred to as an “Acquisition Proposal”). Stratex further agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives shall, directly or indirectly, provide any confidential or non public information or data to, or engage or participate in any discussions or negotiations regardingwith, any Person relating to an Acquisition Proposal, or furnish to any person any information with respect to, otherwise encourage or take any other action to facilitate any inquiries effort or the making of attempt by any proposal that constitutesPerson, in each case, other than Hxxxxx, Newco or may reasonably be expected Merger Sub, to lead to, any make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt nothing contained in this Agreement shall prevent Stratex or the Stratex Board from (i) complying with its disclosure obligations under Sections 14d-9 and 14e-2 of the approval of Exchange Act and the Merger by the rules thereunder with regard to an Acquisition Proposal or making any disclosures to holders of Stratex Common Stock that the Consumers Common Shares (the "Consumers Applicable Period"), the Stratex Board of Directors of Consumers determines in good faith, faith (after consultation with outside counsel, ) that it the Stratex Board is necessary required to do so make in order to comply with its fiduciary duties to Consumers' shareholders the holders of Stratex Common Stock under applicable lawthe DGCL (but if any disclosure made to effect such compliance has the substantive effect of withdrawing, Consumers mayor modifying or qualifying in any manner adverse to Hxxxxx, the Board Recommendation or Board Approval or recommending or approving another Acquisition Proposal (each, a “Change In Recommendation”), Hxxxxx shall have the right to terminate this Agreement pursuant to Section 11.1(c)(i)) or (ii) at any time prior to, but not after, the Stratex Requisite Vote is obtained: (A) providing confidential or non public information in response to a Superior request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal (as defined assuming, for this purpose only, that all references to “15% or more” in Section 4.7.1the definition of such term were changed to “a majority”) which was not solicited by it or which did not otherwise result from a breach of this Section 4.69.1 (a “Qualifying Acquisition Proposal”); (B) engaging or participating in any discussions or negotiations with any Person who has made a Qualifying Acquisition Proposal; or (C) approving or recommending to the holders of shares of Stratex Common Stock a Qualifying Acquisition Proposal (or agreeing to take any such action), if and subject only to providing prior written notice the extent that, (1) in the case of its decision any action described in clause (A), (B) or (C) above, after consulting with outside legal counsel the Stratex Board determines in good faith that failing to take such action would constitute a breach by the directors of Stratex of their fiduciary duties under applicable Law; (2) prior to PSC taking any action described in clause (A) or (B) above, Stratex and the "Consumers Notice"other Person referred to in such clauses execute and deliver a written confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; (3) in the case of any action described in clause (B) or (C) above, the Stratex Board determines in good faith and after consulting with its financial advisors and outside counsel that the Qualifying Acquisition Proposal referred to in such clauses is (x) more favorable from a financial point of view to Stratex’s stockholders than the Transactions after taking into account any Revised Terms offered by Hxxxxx before such action is taken and all other relevant factors (including but not limited to the probability that such Qualifying Acquisition Proposal will be consummated and the time required to effect such consummation) and compliance (y) reasonably likely to be consummated taking into account all legal, financial, regulatory (including, without limitation, any antitrust or competition approvals or non objections) and other relevant factors (any such Qualifying Acquisition Proposal, a “Superior Proposal”) or, in the case of clause (B) only, is reasonably likely to lead to a Superior Proposal; (4) before taking any of the actions described in clause (B) or (C) above, Stratex shall have provided written notice to Hxxxxx of Stratex’s or the Stratex Board’s intention to take such action, at least five (5) Business Days (in the case of the first Qualifying Acquisition Proposal made by such Person) or one (1) Business Day (in the case of any subsequent Qualifying Acquisition Proposal made by such Person) shall have elapsed since the date on which Hxxxxx received such notice and Stratex shall have complied with the provisions of Section 4.6.29.1(c). Any determination required or permitted to be made by the Stratex Board after the date of the Original Formation Agreement under this Agreement shall be sufficient if approved by a majority of the total number of members thereof at a meeting duly called and held and at which a quorum was present and acting throughout.
(ab) furnish information Stratex agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted prior to the Original Formation Agreement Date with respect to Consumers and its subsidiaries to any person making Acquisition Proposal. Stratex will promptly request each Person that has heretofore executed a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation in connection with its outside counsel) and (b) participate in discussions consideration of a transaction with Stratex to return or negotiations regarding such Superior Proposal. For purposes destroy all confidential information furnished prior to the execution of this Agreement, "Acquisition Proposal" means any inquiry, proposal Agreement to or offer from any person relating to any direct for the benefit of such Person by or indirect acquisition or purchase on behalf of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers Stratex or any of its subsidiaries owningSubsidiaries and to destroy all summaries, operating analyses or controlling extracts of or based upon such information in the possession of such Person or any of its Representatives. Stratex agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 9.1. None of Stratex or any of its Subsidiaries will waive any provision of any confidentiality or standstill agreement to which it is a Material Businessparty without the prior written consent of Hxxxxx.
(c) Stratex agrees that it will notify Hxxxxx as promptly as practicable (and, in any event, within 24 hours) if any inquiries, proposals or offers with respect to any Acquisition Proposal or potential Acquisition Proposal are received by, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiaryinformation relating thereto is requested from, or any mergerdiscussions or negotiations relating thereto are sought to be initiated or continued with, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers it or any of its Representatives, indicating, in connection with such subsidiarynotice, the name of such Person and the material terms and conditions of any proposal or offer and thereafter shall keep Hxxxxx informed, on a current basis, as to the status and terms of any such proposal or offer and the status of any such discussions or negotiations. Stratex also agrees to provide any information to Hxxxxx that it is providing to another Person pursuant to this Section 9.1 at the same time it provides it to such other than Person. Stratex agrees that during the five- and one-Business Day periods described in subclause (4) of clause (ii) of the proviso in Section 9.1(a) and in Section 9.2, Stratex shall negotiate in good faith with Hxxxxx with respect to any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by Hxxxxx. Any such revisions which Hxxxxx offers in writing to make which, if accepted by Stratex, would be legally binding on the parties to this Agreement are referred to herein as “Revised Terms”. Stratex agrees that any material amendment to any Qualifying Acquisition Proposal will be deemed to be a new Qualifying Acquisition Proposal for purposes of this Section 9.1 and Section 9.2.
Appears in 1 contract
Samples: Formation, Contribution and Merger Agreement (Harris Corp /De/)
Acquisition Proposals. 4.6.1 Consumers The Company agrees that neither it nor any of its subsidiaries nor any of its executive officers or directors shall, and that it shall notdirect and use its best efforts to cause its non-executive officers and its subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries subsidiaries) not to, directly or indirectly, (ia) initiate, solicit, initiate knowingly encourage or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to otherwise facilitate any inquiries or the making of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or may any purchase of all or any significant portion of the assets or 5% or more of the equity securities of, the Company or any of its subsidiaries (any such transaction or purchase being hereinafter referred to as an "Acquisition Transaction") that, in any such case, could reasonably be expected to lead toto a breach of this Agreement or otherwise interfere with the completion of the Offer or Merger contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or (b) have any discussion with or provide any confidential information or data to any person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that if, at any time prior to receipt of nothing contained in this Agreement shall prevent the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), Company or the Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) engaging in any discussions or negotiations with or providing any information to, any person in response to an unsolicited bona fide written Acquisition Proposal by any such person (including a new and unsolicited Acquisition Proposal received by the Company after execution of Consumers this Agreement from a person or entity whose initial contact with the Company may have been solicited by the Company prior to the execution of this Agreement); or (C) recommending such an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that, in such case referred to in clause (B) or (C), (i) the Board of Directors concludes in good faith (after consultation with its financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial and other aspects of the proposal and the person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (ii) the Board of Directors determines in good faith, faith after consultation with outside counsel, legal counsel that it such action is necessary to do so in order for the Board of Directors to comply with its fiduciary duties to Consumers' shareholders under applicable lawlaw and (iii) prior to providing any non-public information or data to any person in connection with an Acquisition Proposal by any such person, Consumers may, the Board of Directors receives from such person an executed confidentiality agreement on terms substantially similar to those contained in response to a Superior Proposal the Confidentiality Agreement (as defined in Section 4.7.1) which was not solicited by below). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance negotiations with Section 4.6.2
(a) furnish information any parties conducted heretofore with respect to Consumers and its subsidiaries any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 7.2. The Company agrees that it will notify Purchaser promptly if any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations regarding are sought to be initiated or continued with, any of its representatives indicating, in connection with such Superior Proposal. For purposes notice, the name of this Agreementsuch person and the terms and conditions of any proposals or offers and thereafter shall keep Purchaser informed, "Acquisition Proposal" means any inquiryon a current basis, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers status and its subsidiaries, taken as a whole, or 15% or more terms of any class such proposals or offers and the status of voting securities any such discussions or negotiations. The Company also agrees that it will promptly request that each person that has heretofore executed a confidentiality agreement in connection with its consideration of Consumers any Acquisition Proposal to return all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreementsubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Theratx Inc /De/)
Acquisition Proposals. 4.6.1 Consumers (a) MCI and BT each agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission otherwise facilitate (including by way of any Acquisition Proposal (as defined belowfurnishing information) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesproposal, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information offer with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryreorganization, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers involving, or any purchase or sale of all or any significant portion of the assets or 10% or more of the equity securities of, it or any of its Subsidiaries that, in any such subsidiarycase, could reasonably be expected to interfere with the completion of the Merger or the other than the transactions contemplated by this Agreement.Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). MCI and BT each further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall
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Acquisition Proposals. 4.6.1 Consumers (a) MCI and BT each agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notdirect and use its best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or permit any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or other advisor or representative of, Consumers accountant retained by it or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage the submission otherwise facilitate (including by way of any Acquisition Proposal (as defined belowfurnishing information) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesproposal, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information offer with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreementmerger, "Acquisition Proposal" means any inquiryreorganization, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of Consumers and its subsidiaries, taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its subsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any mergershare exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers involving, or any purchase or sale of all or any significant portion of the assets or 10% or more of the equity securities of, it or any of its Subsidiaries that, in any such subsidiarycase, could reasonably be expected to interfere with the completion of the Merger or the other than the transactions contemplated by this Agreement.Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). MCI and BT each further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall 56 45
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