Manner of Termination. This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Effective Date by written notice delivered by First Merchants to MBT or by MBT to First Merchants only for the following reasons: (a) By the mutual consent of First Merchants and MBT, if the Board of Directors of each so determines by vote of a majority of the members of its entire Board; (b) By First Merchants or MBT, if its respective Board of Directors so determines by vote of a majority of the members of its entire Board, in the event of either: (i) a material breach by the other party of any representation or warranty contained herein which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party of such breach; (ii) a material breach by the other party of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party of such breach; or (iii) any event, fact or circumstance shall have occurred with respect to the other party that has had or could be reasonably expected to have a Material Adverse Effect on such party; (c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1; (d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement; (e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019; (f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement; (g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition Proposal; or (h) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination. (i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied: (i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and (ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:
Appears in 2 contracts
Samples: Merger Agreement (First Merchants Corp), Merger Agreement (MBT Financial Corp)
Manner of Termination. This Agreement and the transactions contemplated hereby Mergers may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants FIC to MBT MBC, or by MBT MBC to First Merchants only for the following reasonsFIC as follows:
(a) By FIC or MBC, if:
(i) the mutual consent Mergers contemplated by this Agreement have not been consummated by February 28, 2003; provided, however, that a party hereto in willful breach of First Merchants and MBT, if or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) the Board respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;FIC and MBC mutually agree to terminate this Agreement.
(b) By First Merchants or MBTFIC, if its respective if:
(i) at any time prior to the Effective Time, FIC's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either:
(iA) a material breach by the other party MBC of any representation or warranty contained herein herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party MBC of such breach; or
(iiB) a material breach by the other party MBC of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party MBC of such breach; or
(ii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any claim, litigation or proceeding against FIC, First Indiana, MBC or the Bank, or any director or officer of any of such entities relating to this Agreement or the Mergers; or
(iii) there has been a material adverse change in the business, assets, capitalization, financial condition or results of operations of MBC and the Subsidiaries taken as a whole, as of the Effective Time, as compared to that in existence as of the date of this Agreement, other than any eventchange resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), fact changes in banking laws of general applicability or circumstance shall have occurred interpretations thereof by courts or governmental authorities, changes in accounting principles generally accepted in the United States or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with respect the Mergers or restructuring charges taken in connection with the Mergers, in each case in accordance with accounting principles generally accepted in the United States, effects of any action taken with the prior written consent of FIC and changes in the general level of interest rates or conditions or circumstances that affect the banking industry generally; or
(iv) MBC fulfills the requirements of Section 6.01 hereof but the shareholders of MBC do not approve and adopt the Company Merger and this Agreement.
(c) By MBC, if:
(i) at any time prior to the Effective Time, MBC's Board of Directors so determines, in the event of either
(A) a breach by FIC of any representation or warranty contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to FIC of such breach; or
(B) a breach by FIC of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to FIC of such breach; or
(ii) there has been a material adverse change in the financial condition, results of operations, business, assets or capitalization of FIC on a consolidated basis as of the Effective Time, as compared to that in existence as of the date of this Agreement, other party than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking and similar laws of general applicability or interpretations thereof by courts or governmental authorities, changes in accounting principles generally accepted in the United States or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Mergers or restructuring charges taken in connection with the Mergers, in each case in accordance with accounting principles generally accepted in the United States, effects of any action taken with the prior written consent of MBC and changes in the general level of interest rates or conditions or circumstances that has had affect the banking industry generally; or
(iii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or could be reasonably expected threat of any material claim, litigation or proceeding against FIC or First Indiana (A) relating to this Agreement or the Mergers or (B) which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalFIC; or
(hiv) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under MBC fulfills the requirements of Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) 6.01 hereof but the shareholders of an Acquisition Proposal, MBT does MBC do not terminate all discussions, negotiations approve and information exchanges related to such Acquisition Proposal adopt the Company Merger and provide First Merchants with written notice of such termination.this Agreement; or
(iv) By MBTafter the fulfillment of the requirements of Section 6.05(b) hereof, if MBT’s the Board of Directors so determines by enters into an agreement, arrangement or understanding with a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects third party with respect to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:an Acquisition Transaction.
Appears in 2 contracts
Samples: Merger Agreement (First Indiana Corp), Merger Agreement (Metrobancorp)
Manner of Termination. This Agreement and the transactions contemplated hereby Merger may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants MainSource to MBT 1st Independence, or by MBT 1st Independence to First Merchants only for the following reasonsMainSource, as follows:
(a) By MainSource or 1st Independence, if:
(i) the mutual consent Merger contemplated by this Agreement has not been consummated by September 30, 2008 (or such later date as 1st Independence and MainSource may agree to in writing); provided, however, that a party hereto in willful breach of First Merchants or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 8.01(a)(i); or
(ii) the Agreement and MBT, if the Board Merger are not approved by the requisite vote of the shareholders of 1st Independence at the meeting of shareholders of 1st Independence contemplated in Section 5.01; or
(iii) the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;MainSource and 1st Independence mutually agree to terminate this Agreement.
(b) By First Merchants or MBTMainSource if:
(i) at any time prior to the Effective Time, if its respective MainSource’s Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party 1st Independence of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the same does not result in a Material Adverse Effect; or
(B) a breach by 1st Independence of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the same does not result in a Material Adverse Effect; or
(ii) there has been a Material Adverse Effect in the business, assets, capitalization, financial condition or results of operations of 1st Independence or 1st Bank as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iii) 1st Independence’s Board of Directors, after receiving an Acquisition Transaction proposal from a third party, has withdrawn, modified or changed its approval or recommendation of this Agreement and approved or recommended an Acquisition Transaction with a third party; or
(iv) 1st Independence fulfills the requirements of Section 5.01 hereof but the shareholders of 1st Independence do not approve and adopt the Merger and this Agreement; or
(v) MainSource elects to exercise its right of termination pursuant to Sections 5.11 or 5.21; or
(vi) In the event of any situation or occurrence with respect to 1st Bank which would jeopardize MainSource’s status as a financial holding company under the BHC Act, so long as MainSource, 1st Independence and 1st Bank have been unable, in good faith, to reach a mutually satisfactory agreement with the applicable banking regulators to avoid such jeopardy; or
(vii) The average per share closing prices of a share of MainSource Common Stock as quoted on the Nasdaq Stock Market during the twenty trading days preceding the fifth (5th) calendar day preceding the Effective Time (the “Average Closing Price”) shall be greater than $16.50 per share, subject, however, to the following: If MainSource elects to exercise its termination right pursuant to this Section 8.01(b)(vii), it shall give written notice to 1st Independence. During the five day period commencing with its receipt of such notice, 1st Independence shall have the option to decrease the Stock Consideration to be received by the holders of 1st Independence Common Stock hereunder, by adjusting the Exchange Ratio (calculated to the nearest one one-thousandth) to equal the product of (a) $16.50 divided by the Average Closing Price of MainSource Common Stock, (b) multiplied by the Exchange Ratio. If 1st Independence so elects within such five day period, it shall give prompt written notice to MainSource of such election and the revised Stock Consideration. Whereupon no termination shall have occurred pursuant to this Section 8.01(b)(vii) and this Agreement shall remain in effect in accordance with its terms (except as the Stock Consideration shall have been so modified).
(c) By 1st Independence, if:
(i) at any time prior to the Effective Time, 1st Independence’s Board of Directors so determines, in the event of either:
(A) a breach canby MainSource of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the cure does not result in a Material Adverse Effect on MainSource; or
(B) a breach by MainSource of any of the covenants or agreements contained herein that would be reasonably likely, individually or has not been in the aggregate with other breaches, to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days after the giving of written notice to the breaching party MainSource of such breach; (ii) a material breach by the other party of and any of the covenants or agreements contained herein, which breach cansuch cure would not be or has not been cured within thirty (30) days after the giving of written notice to the breaching party of such breach; or (iii) any event, fact or circumstance shall have occurred with respect to the other party that has had or could be reasonably expected to have result in a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalMainSource; or
(h) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty there has been a change constituting a Material Adverse Effect on MainSource in the financial condition, results of operations, business, assets or capitalization of MainSource on a consolidated basis as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(60iii) days after giving First Merchants written notice 1st Independence fulfills the requirements of Section 5.01 hereof but the shareholders of 1st Independence do not approve and adopt the Merger and this Agreement; or
(iv) 1st Independence elects to exercise its right of termination pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.5.6; or
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(iv) The FMC Market Value is less than eighty percent (80%) Average Closing Price of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) MainSource Common Stock shall be less than $12.50 per share, subject, however, to the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) following: If MBT 1st Independence elects to exercise its termination right pursuant to this Section 10.1(i8.01(c)(v), it shall give prompt written notice thereof to First MerchantsMainSource. During the five (5) business day period commencing with its receipt of such notice, First Merchants MainSource shall have the option to increase the Exchange RatioStock Consideration to be received by the holders of 1st Independence Common Stock hereunder, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, by adjusting the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal calculated to the FMC Market Value, or (ynearest one one-thousandth) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by to equal the product of (a) $12.50 divided by the Average Share Price of MainSource Common Stock, (b) multiplied by the Exchange Ratio (as then in effect) and 0.80Ratio. If First Merchants MainSource so electselects within such five day period, it shall give, within such five (5) business day period, give prompt written notice to MBT 1st Independence of such election and the revised Exchange Ratio, whereupon Stock Consideration. Whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i8.01(c)(v) and this Agreement shall remain in full force and effect in accordance with its terms, terms (except as the Exchange Ratio Stock Consideration shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:.
Appears in 1 contract
Manner of Termination. This Agreement and the transactions contemplated hereby Mergers may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants MainSource to MBT UCBC, or by MBT UCBC to First Merchants only for the following reasonsMainSource, as follows:
(a) By MainSource or UCBC, if:
(i) the mutual consent Mergers contemplated by this Agreement have not been consummated by June 30, 2006; provided, however, that a party hereto in willful breach of First Merchants or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) the Agreement and MBT, if the Board Company Merger are not approved by the requisite vote of the shareholders of UCBC at the Special Meeting of Shareholders of UCBC; or
(iii) the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;MainSource and UCBC mutually agree to terminate this Agreement.
(b) By First Merchants or MBTMainSource if:
(i) at any time prior to the Effective Time, if its respective MainSource's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party UCBC of any representation or warranty contained herein which that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach canis cured within thirty (30) days from the giving of written notice to UCBC of such breach and the same does not result in a Material Adverse Effect; or
(B) a breach by UCBC of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to UCBC of such breach and the same does not result in a Material Adverse Effect; or
(ii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any material claim, litigation or proceeding against MainSource, UCBC, Union Federal, or any subsidiary of MainSource, or any director or officer of any of such entities relating to this Agreement or the Mergers; or
(iii) there has been a Material Adverse Effect in the business, assets, capitalization, financial condition or results of operations of UCBC or Union Federal as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iv) UCBC's Board of Directors submits, or intends to submit, this Agreement to the shareholders without recommending the approval of this Agreement or fails to solicit proxies for approval of this Agreement; or
(v) UCBC fulfills the requirements of Section 6.01 hereof but the shareholders of UCBC do not been approve and adopt the Company Merger and this Agreement; or
(vi) in the event that UCBC fails to maintain a composite rating of at least two (2) from its latest safety and soundness and compliance examination, or fails to maintain a CRA rating of satisfactory or better; or
(vii) MainSource elects to exercise its right of termination pursuant to Section 6.11 hereof;
(c) By UCBC, if:
(i) at any time prior to the Effective Time, UCBC's Board of Directors so determines, in the event of either:
(A) a breach by MainSource of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to UCBC of such breach and the cure does not result in a Material Adverse Effect; or
(B) a breach by MainSource of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days after the giving of written notice to the breaching party MainSource of such breachbreach and any such cure would not result in a Material Adverse Effect; or
(ii) there has been a material breach by change constituting a Material Adverse Effect in the other party financial condition, results of any operations, business, assets or capitalization of MainSource on a consolidated basis as of the covenants or agreements contained hereinEffective Time, which breach cannot be or has not been cured within thirty (as compared to that in existence on June 30) days after the giving of written notice to the breaching party of such breach, 2005; or or
(iii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any eventmaterial claim, fact litigation or circumstance shall have occurred with respect proceeding against MainSource, UCBC or Union Federal or any subsidiary of MainSource or any director or officer of any such entities (A) relating to this Agreement or the other party that has had Mergers or could be reasonably expected (B) which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalMainSource; or
(hiv) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under UCBC fulfills the requirements of Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) 6.01 hereof but the shareholders of an Acquisition Proposal, MBT does UCBC do not terminate all discussions, negotiations approve and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of adopt the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) Company Merger and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:Agreement.
Appears in 1 contract
Manner of Termination. This Agreement and the transactions contemplated hereby Transaction may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants Blue River to MBT Unified, or by MBT Unified to First Merchants only for the following reasonsBlue River as follows:
(a) By Blue River or Unified, if:
(i) the mutual consent Transaction contemplated by this Agreement has not been consummated by January 31, 2004; provided, however, that a party hereto in willful breach of First Merchants and MBT, if or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 8.01(a)(i);
(ii) the Board respective Boards of Directors of each so determines by vote of a majority Blue River and Unified mutually agree to terminate this Agreement;
(iii) the OTS or any other federal and/or state regulatory agency whose approval is required for the consummation of the members transactions contemplated hereby has denied approval of its entire Board;the Transaction and such denial has become final and nonappealable; or
(iv) the stockholders of Unified shall not have approved this Agreement at the meeting referred to in Section 4.01.
(b) By First Merchants or MBTBlue River, if its respective if:
(i) at any time prior to the Effective Time, Blue River's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: either of the following has occurred:
(iA) a material breach by the other party Unified of any representation or warranty contained herein herein, or in the Disclosure Schedules, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Unified of such breach; provided that a breach under this clause (iiA) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on UBC; provided, however, that any such cure may not result in a Material Adverse Effect on UBC;
(B) a material breach by the other party Unified of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Unified of such breach; provided that a breach under this clause (B) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on UBC; provided, however, that any such cure may not result in a Material Adverse Effect on UBC;
(ii) there has been a material adverse change in the business, assets, capitalization, financial condition or results of operations of UBC, taken as a whole, as of the Effective Time, as compared to that in existence as of the date of this Agreement, other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking laws of general applicability or interpretations thereof by courts or governmental authorities, changes in GAAP or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Transaction or in accordance with GAAP, effects of any action taken with the prior written consent of Blue River and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally;
(iii) any eventthe Board of Directors of Blue River determines that Blue River is not able to (A) receive the debt and equity financing required to pay the Purchase Price and expenses, fact in each case on terms satisfactory to Blue River or circumstance shall (B) meet the regulatory capital requirements set forth in Section 8.01(b)(vi) hereof;
(iv) after the fulfillment of the requirements of Section 4.04(b) hereof, Unified enters into an agreement, arrangement or understanding with a third party with respect to an Acquisition Transaction; or
(v) all conditions to Closing set forth in Sections 6.01, 6.02 and 6.03 hereof (excluding Section 6.01(a) hereof) have occurred been, or are capable of being, satisfied and fulfilled (subject to appropriate waivers by Blue River) and the Board of Directors of Unified:
(A) fails to recommend to stockholders of Unified that such stockholders should approve this Agreement and the Transaction;
(B) withdraws, modifies or conditions its recommendation to stockholders of Unified to approve this Agreement of the Transaction or is silent with respect to the other party that has had approval of this Agreement and the Transaction; or
(C) fails to undertake a solicitation of proxies in favor of the Transaction from the stockholders of Unified.
(vi) the regulatory approvals in Section 6.01(d) hereof require Blue River to raise in excess of:
(A) the greater of (1) Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00) of additional capital and (2) such amount of capital as would be required for Blue River to have a Tier I leverage ratio of 6.25% immediately following the Effective Time, or
(B) Four Million and No/100 Dollars ($4,000,000.00) of additional debt; or
(vii) the approvals in Section 6.01(d) hereof shall contain any conditions, restrictions or could be requirements which the Board of Directors of Blue River reasonably expected to determines in good faith would following the Effective Time have a Material Adverse Effect on such party;UBC.
(c) by either First Merchants or MBTBy Unified, if:
(i) at any time prior to the Effective Time, Unified's Board of Directors so determines, in the event of either of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it following has complied in all material respects with its obligations under Section 7.1;occurred:
(dA) a material breach by either First Merchants or MBT, if either (i) any approval, consent or waiver Blue River of any governmental representation or regulatory authority, agency, court, commissionwarranty contained herein, or other administrative entity (“Governmental Entity”) required to permit consummation in the Disclosure Schedules of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable Blue River, which breach cannot be or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June cured within thirty (30, 2019; provided that ) days after the terminating party is not then in material breach giving of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment written notice to closing is the lack Blue River of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition Proposalbreach; or
(hB) By First Merchantsa material breach by Blue River of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (i) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty (6030) days after the giving First Merchants of written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice Blue River of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Valuebreach; andor
(ii) The quotient obtained by dividing after the FMC Market Value by fulfillment of the Initial FMC Market Value requirements of Section 4.04(b) hereof, the Board of Directors of Unified enter into an agreement, arrangement or understanding with a third party with respect to an Acquisition Transaction; or
(“Buyer Ratio”iii) shall be less than on or after January 31, 2004, Blue River is unwilling or unable to fund the quotient obtained by dividing the Final Index Price by the Initial Index Purchase Price, minus 0.20 after all conditions to Closing set forth in Sections 6.01, 6.02 or 6.03 hereof (the “Index Ratio”excluding Section 6.02(e) If MBT elects to exercise its termination right pursuant to this Section 10.1(i)hereof) have been, it shall give prompt written notice thereof to First Merchants. During the five or are capable of being, satisfied and fulfilled (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal subject to the product appropriate waivers of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(iUnified), the following terms shall have the meanings indicated below:.
Appears in 1 contract
Samples: Stock Purchase Agreement (Blue River Bancshares Inc)
Manner of Termination. This Agreement and the transactions contemplated hereby Merger may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants MainSource to MBT Peoples, or by MBT Peoples to First Merchants only for the following reasonsMainSource, as follows:
(a) By MainSource or Peoples, if:
(i) the mutual consent of First Merchants and MBTMerger contemplated by this Agreement has not been consummated by May 31, 2004, if the Board Registration Statement filed by MainSource with the Securities and Exchange Commission (the "SEC") is not subject to the SEC's review, or June 30, 2004, if the Registration Statement filed by MainSource with the SEC is subject to the SEC's review; provided, however, that a party hereto in willful breach of or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) the Agreement and the Merger are not approved by the requisite vote of the shareholders of Peoples at the Special Meeting of Shareholders of Peoples; or
(iii) the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;MainSource and Peoples mutually agree to terminate this Agreement.
(b) By First Merchants or MBTMainSource if:
(i) at any time prior to the Effective Time, if its respective MainSource's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either:
(iA) a material breach by the other party Peoples of any representation or warranty contained herein herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Peoples of such breach; provided, that a breach under this clause (iiA) would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect; provided, however, that any such cure may not result in a Material Adverse Effect and Sections 4.03 and 4.06(b) hereof are not subject to cure; or
(B) a material breach by the other party Peoples of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Peoples of such breach; provided that a breach under this clause (B) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect; provided, however, that any such cure may not result in a Material Adverse Effect; or
(ii) it shall reasonably determine that the Merger contemplated by this Agreement has become impracticable by reason of commencement or threat of any claim, litigation or proceeding against MainSource, Peoples, the Bank, or any subsidiary of MainSource, or any director or officer of any of such entities relating to this Agreement or the Merger; or
(iii) any eventthere has been a Material Adverse Effect in the business, fact assets, capitalization, financial condition or circumstance shall have occurred with respect results of operations of Peoples and the Bank, taken as a whole, as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iv) Peoples' Board of Directors submits, or intends to submit, this Agreement to the other party shareholders without recommending the approval of this Agreement; or
(v) Peoples fulfills the requirements of Section 6.01 hereof but the shareholders of Peoples do not approve and adopt the Merger and this Agreement; or
(vi) in the event that Peoples to maintain a composite rating of at least two (2) from its latest safety and soundness and compliance examination, or fails to maintain a CRA rating of satisfactory or better; or
(vii) in the event that Peoples does not provide title insurance policies and survey drawings for each parcel of real property owned by Peoples within thirty (30) days of the date of this Agreement as provided in Section 4.09(a)(i) hereof; provided, however, that Peoples may have five (5) days to provide any policies or surveys not previously provided to MainSource after receiving written notice to Peoples of any deficiency.
(c) By Peoples, if:
(i) at any time prior to the Effective Time, Peoples' Board of Directors so determines, in the event of either
(A) a breach by MainSource of any representation or warranty contained herein, which breach cannot be or has had not been cured within thirty (30) days after the giving of written notice to MainSource of such breach; or
(B) a breach by MainSource of any of the covenants or could agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to MainSource of such breach; provided that a breach under this clause (B) would be reasonably expected likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on MainSource; provided, however, that any such cure may not result in a Material Adverse Effect on MainSource; or
(ii) there has been a Material Adverse Effect in the financial condition, results of operations, business, assets or capitalization of MainSource on a consolidated basis as of the Effective Time, as compared to that in existence on September 30, 2003; or
(iii) it shall reasonably determine that the Merger contemplated by this Agreement have become impracticable by reason of commencement or threat of any material claim, litigation or proceeding against MainSource (A) relating to this Agreement or the Merger or (B) which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalMainSource; or
(hiv) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under Peoples fulfills the requirements of Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) 6.01 hereof but the shareholders of an Acquisition Proposal, MBT does Peoples do not terminate all discussions, negotiations approve and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of adopt the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) Merger and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:Agreement.
Appears in 1 contract
Samples: Plan of Reorganization and Merger (Mainsource Financial Group)
Manner of Termination. This Agreement and the transactions contemplated hereby Merger may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants ONB to MBT Heritage, or by MBT Heritage to First Merchants only for the following reasonsONB as follows:
(a) By ONB or Heritage, if:
(i) the mutual consent of First Merchants and MBTMerger contemplated by this Agreement has not been consummated by June 30, if 2000; or
(ii) the Board respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;ONB and Heritage mutually agree to terminate this Agreement.
(b) By First Merchants or MBTONB, if its respective if:
(i) the Merger will not qualify for pooling of interests accounting treatment for ONB; or
(ii) at any time prior to the Effective Time, ONB's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either:
(iA) a material breach by the other party Heritage of any representation or warranty contained herein herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Heritage of such breach; provided, however, that any such cure may not result in a Material Adverse Effect; or
(iiB) a material breach by the other party Heritage of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Heritage of such breach; provided that a breach under this clause (B) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect; provided, however, that any such cure may not result in a Material Adverse Effect; or
(iii) it shall reasonably determine that the Merger contemplated by this Agreement has become impracticable by reason of commencement or threat of any eventclaim, fact litigation or circumstance shall have occurred proceeding against ONB, Heritage, any Subsidiary, or any subsidiary of ONB, or any director or officer of any of such entities relating to this Agreement or the Merger; or
(iv) there has been a material adverse change in the business, assets, capitalization, financial condition or results of operations of Heritage and its Subsidiaries taken as a whole as of the Effective Time as compared to that in existence as of the date of this Agreement other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking laws of general applicability or interpretations thereof by courts or governmental authorities, changes in generally accepted accounting principles or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Merger or restructuring charges taken in connection with the Merger, in each case in accordance with generally accepted accounting principles, effects of any action taken with the prior written consent of ONB and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally; or
(v) Heritage fulfills the requirements of Section 6.01 hereof but the shareholders of Heritage do not approve and adopt the Merger and this Agreement; or
(vi) in the event that dissenters' rights are exercised pursuant to Section 3 hereof, and the aggregate amount of cash payable to dissenting shareholders exceeds ten percent (10%) of the value of the total consideration to be paid with respect to the other party Merger.
(c) By Heritage, if:
(i) at any time prior to the Effective Time, Heritage's Board of Directors so determines, in the event of either
(A) a breach by ONB of any representation or warranty contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to ONB of such breach; or
(B) a breach by ONB of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to ONB of such breach; provided that has had or could a breach under this clause (B) would be reasonably expected likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect; or
(ii) there has been a material adverse change in the financial condition, results of operations, business, assets or capitalization of ONB on a consolidated basis as of the Effective Time as compared to that in existence on June 30, 1999, other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking and similar laws of general applicability or interpretations thereof by courts or governmental authorities, changes in generally accepted accounting principles or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Merger or restructuring charges taken in connection with the Merger, in each case in accordance with generally accepted accounting principles, effects of any action taken with the prior written consent of Heritage and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally; or
(iii) it shall reasonably determine that the Merger contemplated by this Agreement has become impracticable by reason of commencement or threat of any material claim, litigation or proceeding against ONB (A) relating to this Agreement or the Merger or (B) which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalONB; or
(hiv) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under Heritage fulfills the requirements of Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) 6.01 hereof but the shareholders of an Acquisition Proposal, MBT does Heritage do not terminate all discussions, negotiations approve and information exchanges related to such Acquisition Proposal adopt the Merger and provide First Merchants with written notice of such termination.this Agreement; or
(iv) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business five-day period commencing on with the Determination Date if both of the following conditions are satisfied:
(iA) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient number obtained by dividing the FMC Market Value Average Closing Price by the Initial FMC Market Value Starting Price (“Buyer the "ONB Ratio”") shall be less than 0.80; and
(B) the quotient ONB Ratio shall be less than the number obtained by dividing the Final Index Price Value by the Initial Index Price, minus 0.20 Value on the Starting Date and subtracting 0.15 from the quotient in this clause (B) (such number being referred to herein as the “"Index Ratio”) "); subject, however, to the following three sentences. If MBT Heritage elects to exercise its termination right pursuant to this Section 10.1(i9.01(c)(v), it shall give prompt written notice thereof to First MerchantsONB (provided that such notice of election to terminate may be withdrawn at any time within the below-mentioned five-day period). During the five (5) business five-day period commencing with its receipt of such notice, First Merchants ONB shall have the option to increase the consideration to be received by the holders of Heritage Common Stock hereunder, by adjusting the Exchange Ratio, at its sole discretion, Ratio (calculated to the nearest one one-thousandth) to equal the lesser of (x) a number (rounded to the quotient, the numerator of which is equal to nearest thousandth) obtained by dividing (A) the product of the Initial FMC Market ValueStarting Price, 0.80 and the Exchange Ratio (as then in effect) by (B) the Average Closing Price and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) a number (rounded to the quotient determined nearest one one-thousandth) obtained by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by (A) the product of the Index Ratio and the Exchange Ratio (as then in effect) and 0.80by (B) the ONB Ratio. If First Merchants ONB so electselects within such five-day period, it shall give, within such five (5) business day period, give prompt written notice to MBT Heritage of such election and the revised Exchange Ratio, whereupon . Whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(iSection
9.01 (c)(v) and this Agreement shall remain in full force and effect in accordance with its terms, terms (except as the Exchange Ratio shall have been so modified). For purposes of this Section 10.1(i9.01(c)(v), the following terms shall have the meanings indicated belowindicated:
Appears in 1 contract
Samples: Agreement of Affiliation and Merger (Heritage Financial Services Inc /Tn/)
Manner of Termination. This Agreement and the transactions contemplated hereby Mergers may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants ONB to MBT Permanent, or by MBT Permanent to First Merchants only for the following reasonsONB as follows:
(a) By ONB or Permanent, if:
(i) the mutual consent Mergers contemplated by this Agreement have not been consummated by September 30, 2000; provided, however, that a party hereto in willful breach of First Merchants and MBT, if or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) the Board respective Boards of Directors of each ONB and Permanent mutually agree to terminate this Agreement; or
(iii) in the event a request is made to renegotiate the Exchange Ratio and ONB and Permanent are unable to do so determines to their mutual satisfaction within the time allotted by vote of a majority of the members of its entire Board;and as contemplated by Section 2.01(c) hereof.
(b) By First Merchants or MBTONB, if its respective if:
(i) at any time prior to the Effective Time, ONB's Board of Directors so determines by vote of a majority of the members of its entire Boardreasonably determines, in the event of either:
(iA) a material breach by Permanent or the other party Bank of any representation or warranty contained herein herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Permanent of such breach; provided, however, that any such cure may not result in a Material Adverse Effect or an intentional breach of this Agreement; or
(iiB) a material breach by Permanent or the other party Bank of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Permanent of such breach; provided that a breach under this clause (B) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect; provided, however, that any such cure may not result in a Material Adverse Effect; or
(ii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any claim, litigation or proceeding against ONB, Permanent, any Subsidiary, or any subsidiary of ONB, or any director or officer of any of such entities relating to this Agreement or the Mergers; or
(iii) there has been a material adverse change in the business, assets, capitalization, financial condition or results of operations of Permanent or any eventSubsidiary taken as a whole as of the Effective Time as compared to that in existence as of the date of this Agreement other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), fact changes in banking laws of general applicability or circumstance shall have occurred interpretations thereof by courts or governmental authorities, changes in generally accepted accounting principles or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with respect the Mergers or restructuring charges taken in connection with the Mergers, in each case in accordance with generally accepted accounting principles, effects of any action taken with the prior written consent of ONB and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally; or 52
(iv) Permanent fulfills the requirements of Section 6.01 hereof but the stockholders of Permanent do not approve and adopt this Agreement and the Company Merger.
(c) By Permanent, if:
(i) at any time prior to the other party Effective Time, Permanent's Board of Directors reasonably determines, in the event of either
(A) a breach by ONB of any representation or warranty contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to ONB of such breach; or
(B) a breach by ONB, Old National Bank or Merger Corporation of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to ONB of such breach; provided that has had or could a breach under this clause (B) would be reasonably expected likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on ONB; or
(ii) there has been a material adverse change in the financial condition, results of operations, business, assets or capitalization of HeritageONB on a consolidated basis as of the Effective Time as compared to that in existence on September 30, 1999, other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking and similar laws of general applicability or interpretations thereof by courts or governmental authorities, changes in generally accepted accounting principles or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Mergers or restructuring charges taken in connection with the Mergers, in each case in accordance with generally accepted accounting principles, effects of any action taken with the prior written consent of Permanent and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally; or
(iii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any material claim, litigation or proceeding against ONB, Old National Bank or Merger Corporation relating to this Agreement or the Mergers and which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalONB; or
(hiv) By First Merchants, Permanent fulfills the requirements of Section 6.01 hereof but the stockholders of Permanent do not approve and adopt this Agreement and the Company Merger; or
(iv) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) the Average Price Per Share of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value ONB common stock is less than eighty percent (80%) of $26.00, subject, however, to the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) following three sentences. If MBT Permanent elects to exercise its termination right pursuant to this Section 10.1(i9.01(c)(v), it shall give prompt written notice thereof to First MerchantsONB (provided that such notice of election to terminate may be withdrawn at any time within the following five-day period). During the five (5) business five-day period commencing with its receipt of such notice, First Merchants ONB shall have the option option, at its discretion, to increase the consideration to be received by the holders of Permanent Common Stock hereunder, by adjusting the Exchange Ratio, Ratio (calculated to the nearest one ten-thousandth) to equal (a) the quotient arrived at its sole discretion, to by dividing (x) the quotient, sum of $85,427,011 plus the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or Aggregate Strike Price (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying Total Outstanding Shares by (b) the quotient by the product Average Price Per Share of the Exchange Ratio (as then in effect) and 0.80ONB common stock. If First Merchants ONB so electselects within such five-day period, it shall give, within such five (5) business day period, give prompt written notice to MBT Permanent of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i9.01(c)(v) and this Agreement shall remain in full force and effect in accordance with its terms, terms (except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:.
Appears in 1 contract
Samples: Agreement of Affiliation and Merger (Permanent Bancorp Inc)
Manner of Termination. This Agreement and the transactions contemplated hereby Transaction may be ---------------------- terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants Blue River to MBT Unified, or by MBT Unified to First Merchants only for the following reasonsBlue River as follows:
(a) By Blue River or Unified, if:
(i) the mutual consent Transaction contemplated by this Agreement has not been consummated by January 31, 2004; provided, however, that a party hereto in willful breach of First Merchants and MBT, if or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 8.01(a)(i);
(ii) the Board respective Boards of Directors of each so determines by vote of a majority Blue River and Unified mutually agree to terminate this Agreement;
(iii) the OTS or any other federal and/or state regulatory agency whose approval is required for the consummation of the members transactions contemplated hereby has denied approval of its entire Board;the Transaction and such denial has become final and nonappealable; or
(iv) the stockholders of Unified shall not have approved this Agreement at the meeting referred to in Section 4.01.
(b) By First Merchants or MBTBlue River, if its respective if:
(i) at any time prior to the Effective Time, Blue River's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: either of the following has occurred:
(iA) a material breach by the other party Unified of any representation or warranty contained herein herein, or in the Disclosure Schedules, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Unified of such breach; provided that a breach under this clause (iiA) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on UBC; provided, however, that any such cure may not result in a Material Adverse Effect on UBC;
(B) a material breach by the other party Unified of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Unified of such breach; provided that a breach under this clause (B) would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on UBC; provided, however, that any such cure may not result in a Material Adverse Effect on UBC;
(ii) there has been a material adverse change in the business, assets, capitalization, financial condition or results of operations of UBC, taken as a whole, as of the Effective Time, as compared to that in existence as of the date of this Agreement, other than any change resulting primarily by reason of changes in banking laws or regulations (or interpretations thereof), changes in banking laws of general applicability or interpretations thereof by courts or governmental authorities, changes in GAAP or regulatory accounting requirements applicable to banks and their holding companies generally, any modifications or changes to valuation policies and practices in connection with the Transaction or in accordance with GAAP, effects of any action taken with the prior written consent of Blue River and changes in the general level of interest rate or conditions or circumstances that affect the banking industry generally;
(iii) any eventthe Board of Directors of Blue River determines that Blue River is not able to (A) receive the debt and equity financing required to pay the Purchase Price and expenses, fact in each case on terms satisfactory to Blue River or circumstance shall (B) meet the regulatory capital requirements set forth in Section 8.01(b)(vi) hereof;
(iv) after the fulfillment of the requirements of Section 4.04(b) hereof, Unified enters into an agreement, arrangement or understanding with a third party with respect to an Acquisition Transaction; or
(v) all conditions to Closing set forth in Sections 6.01, 6.02 and 6.03 hereof (excluding Section 6.01(a) hereof) have occurred been, or are capable of being, satisfied and fulfilled (subject to appropriate waivers by Blue River) and the Board of Directors of Unified:
(A) fails to recommend to stockholders of Unified that such stockholders should approve this Agreement and the Transaction;
(B) withdraws, modifies or conditions its recommendation to stockholders of Unified to approve this Agreement of the Transaction or is silent with respect to the other party that has had approval of this Agreement and the Transaction; or
(C) fails to undertake a solicitation of proxies in favor of the Transaction from the stockholders of Unified.
(vi) the regulatory approvals in Section 6.01(d) hereof require Blue River to raise in excess of:
(A) the greater of (1) Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00) of additional capital and (2) such amount of capital as would be required for Blue River to have a Tier I leverage ratio of 6.25% immediately following the Effective Time, or
(B) Four Million and No/100 Dollars ($4,000,000.00) of additional debt; or
(vii) the approvals in Section 6.01(d) hereof shall contain any conditions, restrictions or could be requirements which the Board of Directors of Blue River reasonably expected to determines in good faith would following the Effective Time have a Material Adverse Effect on such party;UBC.
(c) by either First Merchants or MBTBy Unified, if:
(i) at any time prior to the Effective Time, Unified's Board of Directors so determines, in the event of either of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it following has complied in all material respects with its obligations under Section 7.1;occurred:
(dA) a material breach by either First Merchants or MBT, if either (i) any approval, consent or waiver Blue River of any governmental representation or regulatory authority, agency, court, commissionwarranty contained herein, or other administrative entity (“Governmental Entity”) required to permit consummation in the Disclosure Schedules of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable Blue River, which breach cannot be or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June cured within thirty (30, 2019; provided that ) days after the terminating party is not then in material breach giving of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment written notice to closing is the lack Blue River of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition Proposalbreach; or
(hB) By First Merchantsa material breach by Blue River of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (i) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty (6030) days after the giving First Merchants of written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice Blue River of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Valuebreach; andor
(ii) The quotient obtained by dividing after the FMC Market Value by fulfillment of the Initial FMC Market Value requirements of Section 4.04(b) hereof, the Board of Directors of Unified enter into an agreement, arrangement or understanding with a third party with respect to an Acquisition Transaction; or
(“Buyer Ratio”iii) shall be less than on or after January 31, 2004, Blue River is unwilling or unable to fund the quotient obtained by dividing the Final Index Price by the Initial Index Purchase Price, minus 0.20 after all conditions to Closing set forth in Sections 6.01, 6.02 or 6.03 hereof (the “Index Ratio”excluding Section 6.02(e) If MBT elects to exercise its termination right pursuant to this Section 10.1(i)hereof) have been, it shall give prompt written notice thereof to First Merchants. During the five or are capable of being, satisfied and fulfilled (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal subject to the product appropriate waivers of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(iUnified), the following terms shall have the meanings indicated below:.
Appears in 1 contract
Samples: Stock Purchase Agreement (Unified Financial Services Inc)
Manner of Termination. This Agreement and the transactions contemplated hereby Merger may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants MainSource to MBT 1st Independence, or by MBT 1st Independence to First Merchants only for the following reasonsMainSource, as follows:
(a) By MainSource or 1st Independence, if:
(i) the mutual consent Merger contemplated by this Agreement has not been consummated by September 30, 2008 (or such later date as 1st Independence and MainSource may agree to in writing); provided, however, that a party hereto in willful breach of First Merchants or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 8.01(a)(i); or
(ii) the Agreement and MBT, if the Board Merger are not approved by the requisite vote of the shareholders of 1st Independence at the meeting of shareholders of 1st Independence contemplated in Section 5.01; or
(iii) the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;MainSource and 1st Independence mutually agree to terminate this Agreement.
(b) By First Merchants or MBTMainSource if:
(i) at any time prior to the Effective Time, if its respective MainSource's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party 1st Independence of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the same does not result in a Material Adverse Effect; or
(B) a breach by 1st Independence of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the same does not result in a Material Adverse Effect; or
(ii) there has been a Material Adverse Effect in the business, assets, capitalization, financial condition or results of operations of 1st Independence or 1st Bank as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iii) 1st Independence's Board of Directors, after receiving an Acquisition Transaction proposal from a third party, has withdrawn, modified or changed its approval or recommendation of this Agreement and approved or recommended an Acquisition Transaction with a third party; or
(iv) 1st Independence fulfills the requirements of Section 5.01 hereof but the shareholders of 1st Independence do not approve and adopt the Merger and this Agreement; or
(v) MainSource elects to exercise its right of termination pursuant to Sections 5.11 or 5.21; or
(vi) In the event of any situation or occurrence with respect to 1st Bank which would jeopardize MainSource's status as a financial holding company under the BHC Act, so long as MainSource, 1st Independence and 1st Bank have been unable, in good faith, to reach a mutually satisfactory agreement with the applicable banking regulators to avoid such jeopardy; or
(vii) The average per share closing prices of a share of MainSource Common Stock as quoted on the Nasdaq Stock Market during the twenty trading days preceding the fifth (5th) calendar day preceding the Effective Time (the "Average Closing Price") shall be greater than $16.50 per share, subject, however, to the following: If MainSource elects to exercise its termination right pursuant to this Section 8.01(b)(vii), it shall give written notice to 1st Independence. During the five day period commencing with its receipt of such notice, 1st Independence shall have the option to decrease the Stock Consideration to be received by the holders of 1st Independence Common Stock hereunder, by adjusting the Exchange Ratio (calculated to the nearest one one-thousandth) to equal the product of (a) $16.50 divided by the Average Closing Price of MainSource Common Stock, (b) multiplied by the Exchange Ratio. If 1st Independence so elects within such five day period, it shall give prompt written notice to MainSource of such election and the revised Stock Consideration. Whereupon no termination shall have occurred pursuant to this Section 8.01(b)(vii) and this Agreement shall remain in effect in accordance with its terms (except as the Stock Consideration shall have been so modified).
(c) By 1st Independence, if:
(i) at any time prior to the Effective Time, 1st Independence's Board of Directors so determines, in the event of either:
(A) a breach canby MainSource of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days from the giving of written notice to 1st Independence of such breach and the cure does not result in a Material Adverse Effect on MainSource; or
(B) a breach by MainSource of any of the covenants or agreements contained herein that would be reasonably likely, individually or has not been in the aggregate with other breaches, to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days after the giving of written notice to the breaching party MainSource of such breach; (ii) a material breach by the other party of and any of the covenants or agreements contained herein, which breach cansuch cure would not be or has not been cured within thirty (30) days after the giving of written notice to the breaching party of such breach; or (iii) any event, fact or circumstance shall have occurred with respect to the other party that has had or could be reasonably expected to have result in a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalMainSource; or
(hii) By First Merchantsthere has been a change constituting a Material Adverse Effect on MainSource in the financial condition, results of operations, business, assets or capitalization of MainSource on a consolidated basis as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iiii) if MBT breaches in any material respect its notice obligations under 1st Independence fulfills the requirements of Section 7.5(c) 5.01 hereof but the shareholders of 1st Independence do not approve and adopt the Merger and this Agreement; or (iiiv) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT 1st Independence elects to exercise its right of termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:5.6; or
Appears in 1 contract
Samples: Merger Agreement (1st Independence Financial Group, Inc.)
Manner of Termination. This Agreement and the transactions contemplated hereby Mergers may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants Blue River to MBT Heartland, or by MBT Heartland to First Merchants only for the following reasonsBlue River, as follows:
(a) By the mutual consent of First Merchants and MBT, Blue River or Heartland:
(i) if the Board Mergers contemplated by this Agreement have not been consummated by June 30, 2005; provided, however, that a party hereto in willful breach of or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) if the respective Boards of Directors of each so determines by vote of a majority Blue River and Heartland mutually agree to terminate this Agreement; or
(iii) if any of the members conditions to the obligations of its entire Board;the terminating party specified by Section 8 are not satisfied or waived on or prior to the Closing Date fixed by Section 10.01 (other than as a result of any willful breach of this Agreement by the terminating party), and any applicable cure period provided in this Agreement has lapsed.
(b) By First Merchants or MBTBlue River, if its respective if:
(i) at any time prior to the Effective Time, Blue River's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party Heartland of any representation or warranty contained herein (other than those breaches that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Heartland), which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Heartland of such breach; or
(iiB) a material breach by the other party Heartland in any material respect of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Heartland of such breach; or
(ii) an event has occurred or facts or circumstances shall have come to exist which, directly or indirectly, individually or taken together with all other facts, circumstances and events, has had, or is reasonably likely to have, a Material Adverse Effect, upon Heartland; or
(iii) any eventHeartland fulfills the requirements of Section 6.01 hereof but the shareholders of Heartland do not approve and adopt the Company Merger and this Agreement by the requisite vote; or
(iv) After fulfillment of the requirements of Section 7.06 hereof, fact the Board of Directors of Blue River authorizes Blue River to enter into an agreement, arrangement or circumstance shall have occurred understanding with a third party with respect to a Blue River Acquisition Transaction.
(c) By Heartland, if:
(i) at any time prior to the Effective Time, Heartland's Board of Directors so determines, in the event of either
(A) a breach by Blue River of any representation or warranty contained herein (other party than those breaches that has had or could do not have and would not reasonably be reasonably expected to have have, individually or in the aggregate, a Material Adverse Effect on such party;
(c) by either First Merchants Blue River), which breach cannot be or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June cured within thirty (30, 2019; provided that ) days after the terminating party is not then in material breach giving of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment written notice to closing is the lack Blue River of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition Proposalbreach; or
(hB) By First Merchants, (i) if MBT breaches a breach by Blue River in any material respect its notice obligations under Section 7.5(c) of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (ii) if within sixty (6030) days after the giving First Merchants of written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice Blue River of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Valuebreach; andor
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants an event has occurred or facts or circumstances shall have the option come to increase the Exchange Ratioexist which, at its sole discretiondirectly or indirectly, to (x) the quotientindividually or taken together with all other facts, the numerator of which is equal to the product of the Initial FMC Market Valuecircumstances and events, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Valuehas had, or is reasonably likely to have, a Material Adverse Effect, upon Blue River; or
(yiii) Blue River fulfills the quotient determined by dividing requirements of Section 7.01 hereof but the Initial FMC Market Value by shareholders of Blue River do not approve and adopt the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) Company Merger and this Agreement shall remain in full force and effect in accordance with its terms, except as by the Exchange Ratio shall have been so modified. For purposes requisite vote; or
(iv) After the fulfillment of this the requirements of Section 10.1(i)6.06 hereof, the following terms shall have the meanings indicated below:Board of Directors of Heartland authorizes Heartland to enter into an agreement, arrangement or understanding with a third party with respect to an Acquisition Transaction.
Appears in 1 contract
Manner of Termination. This Agreement Agreement, the Transaction Agreements and the transactions contemplated hereby Transactions may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants (i) Blue River to MBT Holdings or by MBT (ii) Holdings to First Merchants only for the following reasonsBlue River, as follows:
(a) By the mutual consent of First Merchants and MBT, Blue River or Holdings:
(i) if the Board Transactions contemplated by this Agreement have not been consummated by June 30, 2007; provided, however, that a party hereto in willful breach of or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 7.01(a)(i); or
(ii) if the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;Blue River and Holdings mutually agree to terminate this Agreement.
(b) By First Merchants or MBTBlue River, if its respective if:
(i) at any time prior to the Effective Time, Blue River's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party Holdings of any representation or warranty contained herein (other than those breaches that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Holdings), which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Holdings of such breach; or
(iiB) a material breach by the other party Holdings in any material respect of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party Holdings of such breach; or
(ii) an event has occurred or (iii) any event, fact facts or circumstance circumstances shall have occurred come to exist which, directly or indirectly, individually or taken together with respect all other facts, circumstances and events, has had, or is reasonably likely to the other party that has had or could be reasonably expected to have have, a Material Adverse Effect on such party;Holdings; or
(ciii) by either First Merchants [Intentionally Omitted]; or
(iv) on or MBTafter May 31, 2007, in the event of that Holdings has failed to enter into financing commitments for the failure of MBT’s shareholders to approve Holdings Financing which provide for the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable Holdings Financing prior to or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a finalupon the Closing, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment after all conditions to closing is the lack of receipt of any necessary regulatory approvals described Closing set forth in Section 9.4, then such termination date shall be extended 6 hereof (excluding Section 6.02(d) hereof and any failure to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition Proposal; or
(h) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) of an Acquisition Proposal, MBT does not terminate all discussions, negotiations and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:satisfy 6.02
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Blue River Bancshares Inc)
Manner of Termination. This Agreement and the transactions contemplated hereby Mergers may be terminated at any time prior to the Effective Date Time by written notice delivered by First Merchants MainSource to MBT POHF, or by MBT POHF to First Merchants only for the following reasonsMainSource, as follows:
(a) By MainSource or POHF, if:
(i) the mutual consent Mergers contemplated by this Agreement have not been consummated by June 30, 2006; provided, however, that a party hereto in willful breach of First Merchants or willful default hereunder shall have no right to terminate this Agreement pursuant to this Section 9.01(a)(i); or
(ii) the Agreement and MBT, if the Board Company Merger are not approved by the requisite vote of the shareholders of POHF at the Special Meeting of Shareholders of POHF; or
(iii) the respective Boards of Directors of each so determines by vote of a majority of the members of its entire Board;MainSource and POHF mutually agree to terminate this Agreement.
(b) By First Merchants or MBTMainSource if:
(i) at any time prior to the Effective Time, if its respective MainSource's Board of Directors so determines by vote of a majority of the members of its entire Boarddetermines, in the event of either: :
(iA) a material breach by the other party POHF of any representation or warranty contained herein which that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach canis cured within thirty (30) days from the giving of written notice to POHF of such breach and the same does not result in a Material Adverse Effect; or
(B) a breach by POHF of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to POHF of such breach and the same does not result in a Material Adverse Effect; or
(ii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any claim, litigation or proceeding against MainSource, POHF, Peoples Savings, or any subsidiary of MainSource, or any director or officer of any of such entities relating to this Agreement or the Mergers; or
(iii) there has been a Material Adverse Effect in the business, assets, capitalization, financial condition or results of operations of POHF or Peoples Savings as of the Effective Time, as compared to that in existence as of the date of this Agreement; or
(iv) POHF's Board of Directors submits, or intends to submit, this Agreement to the shareholders without recommending the approval of this Agreement or fails to solicit proxies for approval of this Agreement; or
(v) POHF fulfills the requirements of Section 6.01 hereof but the shareholders of POHF do not been approve and adopt the Company Merger and this Agreement; or
(vi) in the event that POHF fails to maintain a composite rating of at least two (2) from its latest safety and soundness and compliance examination, or fails to maintain a CRA rating of satisfactory or better; or
(vii) MainSource elects to exercise its right of termination pursuant to Section 6.11 hereof;
(c) By POHF, if:
(i) at any time prior to the Effective Time, POHF's Board of Directors so determines, in the event of either:
(A) a breach by MainSource of any representation or warranty contained herein that would be reasonably likely, individually or in the aggregate with other breaches to result in a Material Adverse Effect, unless the breach is cured within thirty (30) days from the giving of written notice to POHF of such breach and the cure does not result in a Material Adverse Effect; or
(B) a breach by MainSource of any of the covenants or agreements contained herein that would be reasonably likely, individually or in the aggregate with other breaches, to result in a Material Adverse Effect on MainSource, unless the breach is cured within thirty (30) days after the giving of written notice to the breaching party MainSource of such breachbreach and any such cure would not result in a Material Adverse Effect; or
(ii) there has been a material breach by change constituting a Material Adverse Effect in the other party financial condition, results of any operations, business, assets or capitalization of MainSource on a consolidated basis as of the covenants or agreements contained hereinEffective Time, which breach cannot be or has not been cured within thirty (as compared to that in existence on June 30) days after the giving of written notice to the breaching party of such breach, 2005; or or
(iii) it shall reasonably determine that the Mergers contemplated by this Agreement have become impracticable by reason of commencement or threat of any eventclaim, fact litigation or circumstance shall have occurred with respect proceeding against MainSource, POHF or Peoples Savings or any subsidiary of MainSource or any director or officer of any such entities (A) relating to this Agreement or the other party that has had Mergers or could be reasonably expected (B) which is likely to have a Material Adverse Effect on such party;
(c) by either First Merchants or MBT, in the event of the failure of MBT’s shareholders to approve the Agreement at the Shareholder Meeting; provided, however, that MBT shall only be entitled to terminate the Agreement pursuant to this clause if it has complied in all material respects with its obligations under Section 7.1;
(d) by either First Merchants or MBT, if either (i) any approval, consent or waiver of any governmental or regulatory authority, agency, court, commission, or other administrative entity (“Governmental Entity”) required to permit consummation of the transactions contemplated by this Agreement shall have been denied and such denial has become final and non-appealable or (ii) any court or other Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement;
(e) By MBT or First Merchants, if the transaction contemplated herein has not been consummated by June 30, 2019; provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein; and provided further, that if the sole impediment to closing is the lack of receipt of any necessary regulatory approvals described in Section 9.4, then such termination date shall be extended to September 30, 2019;
(f) By MBT, in accordance with the terms of Section 7.5(b) of this Agreement;
(g) By First Merchants, if MBT’s Board of Directors fails to make, withdraws or modifies its recommendation for MBT’s shareholders to vote in favor of the Merger following receipt of a written proposal for an Acquisition ProposalMainSource; or
(hiv) By First Merchants, (i) if MBT breaches in any material respect its notice obligations under POHF fulfills the requirements of Section 7.5(c) or (ii) if within sixty (60) days after giving First Merchants written notice pursuant to Section 7.5(c) 6.01 hereof but the shareholders of an Acquisition Proposal, MBT does POHF do not terminate all discussions, negotiations approve and information exchanges related to such Acquisition Proposal and provide First Merchants with written notice of such termination.
(i) By MBT, if MBT’s Board of Directors so determines by a majority vote of adopt the members of such Board, at any time during the five (5) business day period commencing on the Determination Date if both of the following conditions are satisfied:
(i) The FMC Market Value is less than eighty percent (80%) of the Initial FMC Market Value; and
(ii) The quotient obtained by dividing the FMC Market Value by the Initial FMC Market Value (“Buyer Ratio”) shall be less than the quotient obtained by dividing the Final Index Price by the Initial Index Price, minus 0.20 (the “Index Ratio”) If MBT elects to exercise its termination right pursuant to this Section 10.1(i), it shall give prompt written notice thereof to First Merchants. During the five (5) business day period commencing with its receipt of such notice, First Merchants shall have the option to increase the Exchange Ratio, at its sole discretion, to (x) the quotient, the numerator of which is equal to the product of the Initial FMC Market Value, the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the FMC Market Value, or (y) the quotient determined by dividing the Initial FMC Market Value by the FMC Market Value, and multiplying the quotient by the product of the Exchange Ratio (as then in effect) and 0.80. If First Merchants so elects, it shall give, within such five (5) business day period, written notice to MBT of such election and the revised Exchange Ratio, whereupon no termination shall be deemed to have occurred pursuant to this Section 10.1(i) Company Merger and this Agreement shall remain in full force and effect in accordance with its terms, except as the Exchange Ratio shall have been so modified. For purposes of this Section 10.1(i), the following terms shall have the meanings indicated below:Agreement.
Appears in 1 contract
