No Solicitation by Company. Company and the officers, directors, employees or other agents of Company (collectively, "Company Representatives") will not, directly or indirectly, (i) take any action to solicit, initiate or encourage or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore with respect to a Company Takeover Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Parentech Inc), Agreement and Plan of Merger and Reorganization (Parentech Inc), Agreement and Plan of Merger and Reorganization (Parentech Inc)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Article VII, directly or indirectly, (ia) take any action to solicit, initiate initiate, facilitate or knowingly encourage (including by way of furnishing information) any inquiries regarding, or agree the making of any proposal or offer that constitutes, or could reasonably be expected to any Company Takeover Proposal ("lead to, a Company Takeover Proposal" means any offer , (b) engage or proposal forenter into, continue or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage otherwise participate in any discussions or negotiations withregarding, or disclose furnish to any nonpublic other Person information relating to the in connection with any Company toTakeover Proposal, or afford access to the properties, books otherwise cooperate with or records of the Company, to any person that has advised Company that it may be considering makingassist or participate in, or that has madefacilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if(c) grant any waiver, prior amendment or release of or under, or fail to adoption enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of this Agreement by Company stockholdersany other contract) or (d) enter into any letter of intent, an unsolicited written Company Takeover Proposal shall be received by the Board memorandum of Directors of Companyunderstanding, thenagreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish or in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice proposal or offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating could reasonably be expected to Company or for access lead to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a . Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of the Company Subsidiaries and complete copy each of such its and the Company Takeover Proposal notice or Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any amendment theretosolicitation, if it is in writingencouragement, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover ProposalProposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Choiceone Financial Services Inc), Agreement and Plan of Merger (Wintrust Financial Corp), Agreement and Plan of Merger (Macatawa Bank Corp)
No Solicitation by Company. (a) The Company shall not and shall cause the officersCompany Bank not to, directors, employees or other agents of and shall use and cause the Company (collectively, "Company Representatives") will notBank to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into, any Company Alternative Acquisition Agreement. The Company shall, and shall cause the Company Bank and the Representatives of the Company and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Bank to, (3A) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons person conducted heretofore with respect to any Company Acquisition Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company, the Company Bank or any of their respective Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the approval of this Agreement by its shareholders, (1) the Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then the Company may (and may authorize the Company Bank and its and their Representatives to) (x) furnish non-public information with respect to the Company and the Company Bank to the person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Company Acquisition Proposal (and such person’s Representatives) regarding such Company Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gs Financial Corp), Agreement and Plan of Merger (Home Bancorp, Inc.)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of its Subsidiaries and Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Section 7.1, directly or indirectly, (ia) take any action to solicit, initiate or initiate, encourage or agree to any Company Takeover Proposal knowingly facilitate ("Company Takeover Proposal" means any offer or proposal for, or any indication including by way of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to furnishing non-public information of Company that are supplied to such third party; providedinformation) any inquiries regarding, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice making of any such intent to agree proposal or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingconstitutes, or that has madecould reasonably be expected to lead to, a Company Takeover Proposal, or whose efforts (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to formulate any other Person material non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Proposal. Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of the Company Subsidiaries and complete copy each of such its and the Company Takeover Proposal notice or Subsidiaries’ Representatives to (i) immediately upon execution of this Plan of Merger, cease any amendment theretosolicitation, if it is in writingencouragement, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to a Company Takeover ProposalProposal as of the date of this Plan of Merger, (ii) request promptly thereafter that such Person promptly return or destroy all confidential information concerning Company and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (United Bancorp Inc /Mi/), Agreement and Plan of Merger (Old National Bancorp /In/)
No Solicitation by Company. (a) Company and the agrees that neither it nor any of its subsidiaries nor any of their respective officers, directors, employees employees, agents and representatives, (including without limitation any investment banker, attorney or other agents accountant retained by it or any of Company its subsidiaries) (collectively, "Company Representatives") will not), will, directly or indirectly, (i) take any action to initiate, solicit, initiate or encourage or agree to otherwise facilitate any inquiries or the making of any Company Takeover Proposal ("as defined below). Company Takeover Proposal" means further agrees that neither it nor any offer of its subsidiaries nor any of their Representatives will, directly or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceindirectly, engage in any discussions or negotiations withconcerning, or disclose provide any nonpublic confidential or non-public information relating to the Company or data to, or afford access to the properties, books or records of the CompanyCompany or any of its subsidiaries to, to or have any discussions with, any person that has advised relating to a Company that it may be considering makingTakeover Proposal, enter into any agreement or that has made, instrument relating to a Company Takeover Proposal or otherwise facilitate any effort or attempt to make or implement a Company Takeover Proposal. Notwithstanding Company agrees that it will immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties heretofore with respect to any of the immediately preceding sentenceforegoing (if any). Company agrees that it will take the necessary steps to promptly inform each of its Representatives of the obligations undertaken in this Section 4.4 and in the Confidentiality Agreement (as defined in Section 5.4). Company agrees that it will notify Parent promptly if any inquiries, if, prior proposals or offers relating to adoption of this Agreement by Company stockholders, an unsolicited written a Company Takeover Proposal shall are received by, any such information is requested from, or any such discussions or negotiations are sought to be received by initiated or continued with, Company or any of its representatives indicating, in connection with such notice, the Board name of Directors of Companythe person making the inquiry, then, to proposal or offer and the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all material terms and conditions of such written Company Takeover Proposal, including the likelihood any proposals or offers and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and thereafter shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, communication (if it is in writing) and otherwise keep Parent informed, on a current basis, on the status and terms of any such proposals or a complete written summary thereof, if it is not in writingoffers and the status of any such negotiations or discussions. Company also agrees that it will promptly request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring it or any of its subsidiaries to return to Company all confidential information heretofore furnished to such person by or on behalf of it or any of its subsidiaries. At the Closing, Company shall immediately cease assign to Parent the non-exclusive right to enforce the rights of Company and cause to be terminated its subsidiaries under any and all existing discussions confidentiality or negotiations with non-disclosure agreements entered into between Company and prospective acquirors of Company or any persons conducted heretofore with respect to a Company Takeover Proposalof its subsidiaries.
Appears in 2 contracts
Samples: Shareholder Agreement (Digital Island Inc), Agreement and Plan of Reorganization (Sandpiper Networks Inc)
No Solicitation by Company. (a) Company shall not and the officersshall cause its Subsidiaries not to, directors, employees or other agents of Company (collectively, "Company Representatives") will notand shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (Person any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate a approve or recommend, or execute or enter into, any Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Alternative Acquisition Agreement. Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of its Subsidiaries and complete copy the Representatives of such Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons Person conducted heretofore with respect to any Company Acquisition Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, and (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Whitney Holding Corp), Agreement and Plan of Merger (Hancock Holding Co)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Article VII, directly or indirectly, (ia) take any action to solicit, initiate or initiate, encourage or agree to any Company Takeover Proposal knowingly facilitate ("Company Takeover Proposal" means any offer or proposal for, or any indication including by way of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to furnishing non-public information of Company that are supplied to such third party; providedinformation) any inquiries regarding, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice making of any such intent to agree proposal or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingconstitutes, or that has madecould reasonably be expected to lead to, a Company Takeover Proposal, or whose efforts (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to formulate any other Person material non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Proposal. Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of the Company Subsidiaries and complete copy each of such its and the Company Takeover Proposal notice or Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any amendment theretosolicitation, if it is in writingencouragement, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to a Company Takeover ProposalProposal as of the date of this Plan of Merger, (ii) request promptly thereafter that such Person promptly return or destroy all confidential information concerning Company and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Chemical Financial Corp), Agreement and Plan of Merger (Chemical Financial Corp)
No Solicitation by Company. (a) The Company agrees that, during the term of this Agreement, it shall not, and the officersshall not authorize or permit any of its subsidiaries or any director, directorsofficer, employees employee, agent or other agents of Company representative (collectively, "Company Representatives") will notof --------------- the Company or any of its subsidiaries, directly or indirectly, to (i) take any action to solicit, initiate or initiate, encourage or agree facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to a Company Competing Transaction (as defined herein) or (ii) negotiate, explore or otherwise engage in discussions with any person (other than Parent or Newco or their respective Representatives) with respect to any Company Takeover Proposal (Competing Transaction. The term "Company Takeover ProposalCompeting Transaction" means any offer or proposal for----------------------------- recapitalization, or any indication of interest inmerger, a merger consolidation or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant acquisition of any material portion of the capital stock or assets (except for (A) acquisitions of Companyassets in the ordinary course of business, (B) acquisitions by the Company that do not and could not reasonably be expected to impede the consummation of the Merger and do not violate any other than the transactions contemplated by covenant in this Agreement, or (iiC) subject to the terms of the immediately following sentence, engage transactions disclosed in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to Disclosure Letter and (D) the properties, books or records Transactions) of the Company, or any combination of the foregoing. The Company will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any person that has advised of the foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to a Company that it may be considering makingCompeting Transaction. From and after the execution of this Agreement, the Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or that has made, proposals relating to a Company Takeover ProposalCompeting Transaction (including the specific terms thereof), and promptly furnish to Parent a copy of any such proposal or inquiry in addition to any information provided to or by any third party relating thereto and if such proposal or inquiry is not in writing, the identity of the person making such proposal or inquiry. Notwithstanding the immediately preceding sentence, ifforegoing, prior to adoption receipt of this Agreement by the Company stockholdersShareholder Approval, an unsolicited written the Company Takeover Proposal shall be received by may, but only to the extent that the Board of Directors of Companythe Company shall conclude in good faith, thenbased upon the advice of its outside counsel, that failure to take such action could reasonably be expected to constitute a breach of the extent the fiduciary obligations of such Board of Directors under Applicable Law, in response to a proposal for a Company Competing Transaction that constitutes a Qualifying Company Proposal (as defined in Section 5.02(d)) that did not result from the breach or a deemed breach of this Section 5.02, and subject to compliance with the notification provisions of this Section 5.02, (A) furnish non-public information with respect to the Company believes in good faith (after advice from to the person proposing such Company Competing Transaction and its financial advisor and after considering all Representatives pursuant to a confidentiality agreement with terms and conditions no less restrictive of such written Company Takeover Proposal, including person than those set forth in the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Confidentiality Agreement (any such more favorable Company Takeover Proposal being referred to as defined in this Agreement as a "Superior Company Proposal"Section 6.02) and the Board of Directors of Company determines (B) participate in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in discussions or negotiations with such partyperson and its Representatives regarding such Company Competing Transaction. Without limiting the foregoing, and it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such actions person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall not be considered deemed to be a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination 5.02(a) by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore with respect to a Company Takeover ProposalCompany.
Appears in 1 contract
Samples: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company will not and will cause each of its Subsidiaries and Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Section 7.1, directly or indirectly, (ia) take any action to solicit, initiate initiate, facilitate or encourage or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication including by way of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to furnishing non-public information of Company that are supplied to such third party; providedinformation) any inquiries regarding, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice making of any such intent to agree proposal or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingconstitutes, or that has madecould reasonably be expected to lead to, a Company Takeover Proposal, or whose efforts (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to formulate any other Person non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons)Proposal. Company will, and will keep Parent fully informed cause each of the status Company Subsidiaries and details each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any such Company Takeover Proposal noticesolicitation, request or correspondence or communications related theretoencouragement, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to a Company Takeover ProposalProposal as of the date of this Plan of Merger, (ii) request promptly thereafter that such Person promptly return or destroy all confidential information concerning Company and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Choiceone Financial Services Inc)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Article VII, directly or indirectly, (ia) take any action to solicit, initiate or initiate, encourage or agree to any Company Takeover Proposal knowingly facilitate ("Company Takeover Proposal" means any offer or proposal for, or any indication including by way of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to furnishing non-public information of Company that are supplied to such third party; providedinformation) any inquiries regarding, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice making of any such intent to agree proposal or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingconstitutes, or that has madecould reasonably be expected to lead to, a Company Takeover Proposal, or whose efforts (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to formulate any other Person material non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Proposal. Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of the Company Subsidiaries and complete copy each of such its and the Company Takeover Proposal notice or Subsidiaries’ Representatives to (i) immediately upon execution of this Plan of Merger, cease any amendment theretosolicitation, if it is in writingencouragement, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to a Company Takeover ProposalProposal as of the date of this Plan of Merger, (ii) request promptly thereafter that such Person promptly return or destroy all confidential information concerning Company and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Monarch Community Bancorp Inc)
No Solicitation by Company. (a) Company shall not and the officers, shall cause its Subsidiaries and their directors, officers and employees or not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other agents of Company (collectively, "Company Representatives") will notRepresentatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (Person any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (each, a “Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or personsAlternative Acquisition Agreement”), and will keep Parent fully informed of the status and details of any such . Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of its Subsidiaries and complete copy the Representatives of such Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons Person conducted heretofore with respect to any Company Acquisition Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to result in to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) of this Section 5.3(a) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal.
Appears in 1 contract
No Solicitation by Company. (a) The Company and the Bank agree that, prior to the Effective Time, neither of them shall, and that they shall cause its and each of their officers, directors, employees or other employees, advisors, representatives and agents of Company (collectively, "Company Representatives") will notnot to, directly or indirectly, (i) take any action to solicit, initiate or encourage (including by way of providing information), or agree knowingly facilitate any inquiries, proposals or offers with respect to, or the making or completion of, any Acquisition Proposal, (ii) provide or disclose any non-public information to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Person relating to the Company or the acquisition of 15% Bank in connection with an Acquisition Proposal, participate or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations withconcerning an Acquisition Proposal, or disclose otherwise take any nonpublic information relating action to facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) approve, endorse, recommend, agree to or accept, or propose publicly to approve, recommend, endorse, agree to or accept, any Acquisition Proposal, (iv) withdraw, modify or amend the Company toRecommendation in any manner adverse to Parent, (v) approve, recommend, endorse, agree to or accept, or afford access propose to the propertiesapprove, books recommend, endorse, agree to or records accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Acquisition Proposal or (vi) resolve, propose or agree to do any of the Companyforegoing. Without limiting the foregoing, to any person that has advised violation of the restrictions set forth in the preceding sentence by any of the officers, directors, employees, agents or representatives of the Company that it may be considering makingor the Bank (including any investment banker, attorney or that has made, a accountant retained by the Company Takeover Proposal. Notwithstanding or the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal Bank) shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination 4.2(a) by the Company Board of Directors and provides Parent with a true the Bank. The Company and complete copy the Bank shall promptly inform their advisors and representatives of the Superior obligations of the Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Bank under this Section 4.2(a). The Company Board of Directors shall not withdraw its recommendation of and the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to Bank agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company that they will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any persons Persons conducted heretofore with respect to a Company Takeover Proposalany Acquisition Proposal (except with respect to the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Acquisition Agreement (First Community Bank Corp of America)
No Solicitation by Company. (a) The Company agrees that, during the term of this Agreement, it shall not, and the officersshall not authorize or permit any of its subsidiaries or any director, directorsofficer, employees employee, agent or other agents of Company representative (collectively, "Company Representatives") will notof the Company or any of its subsidiaries, directly or indirectly, to (i) take any action to solicit, initiate or initiate, encourage or agree facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to a Company Competing Transaction (as defined herein) or (ii) negotiate, explore or otherwise engage in discussions with any person (other than Parent or Newco or their respective Representatives) with respect to any Company Takeover Proposal (Competing Transaction. The term "Company Takeover ProposalCompeting Transaction" means any offer or proposal forrecapitalization, or any indication of interest inmerger, a merger 62 consolidation or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant acquisition of any material portion of the capital stock or assets (except for (A) acquisitions of Companyassets in the ordinary course of business, (B) acquisitions by the Company that do not and could not reasonably be expected to impede the consummation of the Merger and do not violate any other than the transactions contemplated by covenant in this Agreement, or (iiC) subject to the terms of the immediately following sentence, engage transactions disclosed in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to Disclosure Letter and (D) the properties, books or records Transactions) of the Company, or any combination of the foregoing. The Company will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any person that has advised of the foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to a Company that it may be considering makingCompeting Transaction. From and after the execution of this Agreement, the Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or that has made, proposals relating to a Company Takeover ProposalCompeting Transaction (including the specific terms thereof), and promptly furnish to Parent a copy of any such proposal or inquiry in addition to any information provided to or by any third party relating thereto and if such proposal or inquiry is not in writing, the identity of the person making such proposal or inquiry. Notwithstanding the immediately preceding sentence, ifforegoing, prior to adoption receipt of this Agreement by the Company stockholdersShareholder Approval, an unsolicited written the Company Takeover Proposal shall be received by may, but only to the extent that the Board of Directors of Companythe Company shall conclude in good faith, thenbased upon the advice of its outside counsel, that failure to take such action could reasonably be expected to constitute a breach of the extent the fiduciary obligations of such Board of Directors under Applicable Law, in response to a proposal for a Company Competing Transaction that constitutes a Qualifying Company Proposal (as defined in Section 5.02(d)) that did not result from the breach or a deemed breach of this Section 5.02, and subject to compliance with the notification provisions of this Section 5.02, (A) furnish non-public information with respect to the Company believes in good faith (after advice from to the person proposing such Company Competing Transaction and its financial advisor and after considering all Representatives pursuant to a confidentiality agreement with terms and conditions no less restrictive of such written Company Takeover Proposal, including person than those set forth in the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Confidentiality Agreement (any such more favorable Company Takeover Proposal being referred to as defined in this Agreement as a "Superior Company Proposal"Section 6.02) and the Board of Directors of Company determines (B) participate in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in discussions or negotiations with such partyperson and its Representatives regarding such Company Competing Transaction. Without limiting the foregoing, and it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such actions person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall not be considered deemed to be a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination 5.02(a) by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore with respect to a Company Takeover ProposalCompany.
Appears in 1 contract
Samples: Agreement and Plan of Exchange and Merger (Peco Energy Co)
No Solicitation by Company. (a) Subject to Sections 7.4(c), 7.4(d) and 7.4(e), during the term of this Agreement the Company agrees that it and the its Subsidiaries will not, and its or its Subsidiaries’ officers, directors, employees employees, agents or other agents of retained representatives (each, a “Company (collectively, "Company Representatives"Representative”) will not, directly or indirectly, indirectly (i) take any action to solicit, initiate or knowingly facilitate or encourage or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal forthe making, submission, or reaffirmation by any indication Person (other than Parent and its Subsidiaries) of interest inany inquiry, a merger proposal or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Companyoffer with respect to, that constitutes, or a significant portion of the assets of Companywould be reasonably likely to lead to, other than the transactions contemplated by this Agreementany Acquisition Proposal, or (ii) subject to the terms of the immediately following sentence, engage in any enter into discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford provide access to the its properties, books and records or records any confidential information or data to, any Person relating to an Acquisition Proposal, or (iii) enter into any agreement, understanding, letter of intent or arrangement with respect to any Acquisition Proposal. The Company shall use its reasonable best efforts to take the necessary steps promptly to inform each Company Representative of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to obligations undertaken in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary Section 7.4. Subject to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable lawSection 7.4(d), then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event neither the Company notifies Parent of such determination by nor the Company Board of Directors and provides Parent or any committee thereof shall recommend to its stockholders any Acquisition Proposal or approve any agreement with a true and complete copy of the Superior respect to an Acquisition Proposal. The Company Proposal received from such third partyshall take, and provides (shall cause its Subsidiaries to take, all actions reasonably necessary to cause the Company Representatives to immediately cease any discussions or has provided) Parent negotiations with all documents containing any party or referring parties with respect to non-public information of Company that are supplied to such third partyany Acquisition Proposal; provided, however, that nothing in this Section 7.4 shall preclude the Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and Representative from contacting any such party or parties solely for the Company Board purpose of Directors shall not withdraw its recommendation complying with the provisions of the Merger and adoption last sentence of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendationSection 7.4(a). Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. The Company shall immediately cease and cause shall instruct the Company Representatives to be terminated all terminate any existing activities, discussions or negotiations with any persons Persons conducted heretofore with respect to any Acquisition Proposal and shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal, if any, to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company Takeover Proposaland its Subsidiaries.
Appears in 1 contract
No Solicitation by Company. (a) Company and the officers, directors, employees or other agents of Company (collectively, "Company Representatives") will not, and will not authorize, direct or knowingly permit its Representatives to, directly or indirectly, (i) take any action to solicit, initiate or initiate, knowingly encourage or agree to induce the making, submission or announcement of any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage participate in any discussions or negotiations withwith any person regarding, or disclose furnish to any nonpublic person any information relating to the Company with respect to, or afford access take any other action that would reasonably be expected to the propertiesfacilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation(iii) that such authorize, approve or recommend any Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point or (iv) enter into any letter of view than the transaction contemplated by this Agreement (intent or similar document or any such more favorable Contract accepting or providing for any Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant nothing in this Section 6.4 or elsewhere in this Agreement shall prohibit Company's board of directors from complying with Rule 14e-2 under the Exchange Act with regard to a non-disclosure agreementtender or exchange offer not arising out of, related to or otherwise by virtue of a violation of this Section 6.4; and provided further provided, further, that Company Representatives nothing in this Section 6.4 or elsewhere in this Agreement shall not agree to or endorse any Company Takeover Proposal and prohibit Company, before the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless by the shareholders of Company, from furnishing information regarding Company has provided Parent at least three to, entering into negotiations or discussions with, or entering into an agreement relating to a Company Takeover Proposal with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (3and not withdrawn) days prior notice of any such intent to agree or endorse the extent (1) such Company Takeover Proposal or is not attributable to withdraw a material breach of this Section 6.4(a); (2) the board of directors of Company concludes in good faith, consistent with advice of outside legal counsel, that failure to take such recommendation. action would likely constitute a breach of the fiduciary obligations of the board of directors of Company will promptly to Company's shareholders under applicable Law; (and 3) the board of directors of Company concludes, in any event within 24 hours) notify Parent after receipt good faith, consistent with the advice of any the Company's financial advisors that such Company Takeover Proposal or any notice that any person is considering making reasonably likely to lead to a Company Takeover Proposal or Superior Proposal; (4) prior to furnishing any request for non-public such information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingto, or that has madeentering into discussions or negotiations with, a such person, Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such gives Parent written notice to include of the identity of such person or persons)person, the material terms and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy conditions of such Company Takeover Proposal notice or any amendment thereto, if it is in writingand Company's intention to furnish information to, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing enter into discussions or negotiations with, such person; (5) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (6) contemporaneously with furnishing any persons conducted heretofore with respect such information to a such person, Company Takeover Proposalfurnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Chell Group Corp)
No Solicitation by Company. (a) The Company shall not and the officersshall cause its Subsidiaries not to, directors, employees or other agents of Company (collectively, "Company Representatives") will notand shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate a approve or recommend, or execute or enter into, any Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Alternative Acquisition Agreement. The Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause its Subsidiaries and complete copy the Representatives of such the Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons person conducted heretofore with respect to any Company Acquisition Proposal, and (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company, any of its Subsidiaries or any of their respective Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the approval of this Agreement by its shareholders, (1) the Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then the Company may (and may authorize its Subsidiaries and Representatives to) (x) furnish non-public information with respect to the Company and any of its Subsidiaries to the person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the confidentiality agreement by and between Parent and Sandler O’Xxxxx, dated as of April 3, 2015; provided, that any non-public information provided to any person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Company Acquisition Proposal (and such person’s Representatives) regarding such Company Acquisition Proposal; provided, however, that in the event that the Company has received an unsolicited Company Acquisition Proposal following the date of this Agreement and prior to approval by the Company’s shareholders of this Agreement, which Company Acquisition Proposal the Company Board believes in good faith to be bona fide but the terms of which require clarification, then the Company Board may, regardless of the conditions set forth in subparts (3) and (4) of this sentence (such conditions not being deemed applicable for purposes of this proviso), request from the person who submitted such Company Acquisition Proposal such additional information as may be reasonably required to clarify such Company Acquisition Proposal and, provided further, that such Company Acquisition Proposal needing clarification was not the result of a material violation of Section 7.3(a) by the Company.
Appears in 1 contract
No Solicitation by Company. Company (a) From the date of this Agreement until the earlier of the Effective Time and the officersvalid termination of this Agreement, directorsexcept as otherwise set forth in this Section 6.2, employees or other agents of Company (collectivelyshall not, "Company Representatives") will notand shall cause its Subsidiaries and its directors and executive officers not to, and shall direct its external advisors not to, directly or indirectly, (i) take any action to solicit, initiate initiate, participate in, knowingly facilitate, knowingly assist or knowingly encourage or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal forinquiries regarding, or the making or submission of, any indication of interest inAcquisition Proposal, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence(A) enter into, engage continue or participate in any discussions or negotiations within respect of any Acquisition Proposal or (B) furnish to any Third Party any information in connection with any Acquisition Proposal, (iii) enter into or adopt any letter of intent, heads of terms, memorandum of understanding or similar document, agreement, commitment, or disclose agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (iv) recommend or approve or publicly propose to recommend, adopt or approve any nonpublic information relating Acquisition Proposal, (v) withdraw, or qualify, amend or modify in a manner adverse to Purchaser (or publicly propose to withdraw, or qualify, amend or modify in a manner adverse to Purchaser), the Company toBoard Recommendation, or afford access resolve or agree to take any such action, including requesting that the propertiesCourt does not sanction the Scheme of Arrangement, books or records of (vi) fail to include the CompanyCompany Board Recommendation in the Scheme Circular, (vii) fail to any person publicly reaffirm the Company Board Recommendation within 10 Business Days after Purchaser so requests in writing (provided that (x) Purchaser may only make such request once per Acquisition Proposal and once if no Acquisition Proposal has advised been publicly disclosed and (y) Company that it may shall not be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior required to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, do so to the extent it will contravene Applicable Law, including the Board fiduciary duties of Directors the Company Board) or (viii) resolve or agree to do any of the foregoing (any of the foregoing clauses (iv)-(vii) or clause (viii) (to the extent relating to clauses (iv)-(vii), a “Company believes Adverse Recommendation Change”)); provided, that, anything to the contrary in good faith this Agreement notwithstanding, Company or any of its Representatives may, in response to an Acquisition Proposal or any inquiry, indication of interest, proposal, offer or request from a Third Party (after advice from its financial advisor and after considering all 1) seek to clarify the terms and conditions of such written Company Takeover Acquisition Proposal, inquiry, indication of interest, proposal, offer or request (including by requesting that an oral communication be made in writing), (2) inform such Third Party or its Representative of the likelihood and timing restrictions imposed by the provisions of its consummationthis Section 6.2 or (3) that grant waivers, amendments or releases under any standstill restriction in effect on the date hereof to the extent necessary to allow such Third Party to make a confidential Acquisition Proposal, in the case of this clause (3), if the Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith faith, after advice from consultation with its financial advisor and outside legal counsel counsel, that it is necessary the failure to do so in order for the Board of Directors of Company to comply take such action would be inconsistent with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendationApplicable Law. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause its Subsidiaries to, and complete copy of such Company Takeover Proposal notice or shall direct its and its Subsidiaries’ Representatives to, (x) promptly cease any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations negotiations, if any, with any persons conducted heretofore Third Party ongoing as of the date of this Agreement with respect to a any Acquisition Proposal and (y) promptly instruct any such Third Party in possession of confidential information about Company Takeover Proposalor any of its Subsidiaries that was furnished by or on behalf of Company in connection with such discussions or negotiations for such Third Parties and its Representatives to return or destroy all such information promptly after the date hereof in accordance with the relevant confidentiality agreement between Company and such Third Party.
Appears in 1 contract
No Solicitation by Company. (a) The Company shall not and shall cause the officersCompany Bank not to, directors, employees or other agents of and shall use and cause the Company (collectively, "Company Representatives") will notBank to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into, any Company Alternative Acquisition Agreement. The Company shall, and shall cause the Company Bank and the Representatives of the Company and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Bank to, (3A) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons person conducted heretofore with respect to any Company Acquisition Proposal, and (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company, the Company Bank or any of their respective Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the approval of this Agreement by its shareholders, (1) the Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then the Company may (and may authorize the Company Bank and Representatives to) (x) furnish non-public information with respect to the Company and the Company Bank to the person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the letter by and between Parent and the Company, dated as of September 8, 2021; provided, that any non-public information provided to any person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Company Acquisition Proposal (and such person’s Representatives) regarding such Company Acquisition Proposal; provided, however, that in the event that the Company has received an unsolicited Company Acquisition Proposal following the date of this Agreement and prior to approval by the Company’s shareholders of this Agreement, which Company Acquisition Proposal the Company Board believes in good faith to be bona fide but the terms of which require clarification, then the Company Board may, regardless of the conditions set forth in subparts (3) and (4) of this sentence (such conditions not being deemed applicable for purposes of this proviso), request from the person who submitted such Company Acquisition Proposal such additional information as may be reasonably required to clarify such Company Acquisition Proposal and, provided further, that such Company Acquisition Proposal needing clarification was not the result of a material violation of Section 7.3(a) by the Company.
Appears in 1 contract
No Solicitation by Company. (a) The Company shall not and the officersshall cause its Subsidiaries not to, directors, employees or other agents of Company (collectively, "Company Representatives") will notand shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate a approve or recommend, or execute or enter into, any Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Alternative Acquisition Agreement. The Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause its Subsidiaries and complete copy the Representatives of such the Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons person conducted heretofore with respect to any Company Acquisition Proposal, and (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company, any of its Subsidiaries or any of their respective Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the approval of this Agreement by its shareholders, (1) the Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then the Company may (and may authorize its Subsidiaries and Representatives to) (x) furnish non-public information with respect to the Company and any of its Subsidiaries to the person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Company Acquisition Proposal (and such person’s Representatives) regarding such Company Acquisition Proposal.
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of its Subsidiaries and Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the officers, directors, employees or other agents termination of Company (collectively, "Company Representatives") will notthis Plan of Merger in accordance with Article VII, directly or indirectly, (ia) take any action to solicit, initiate or initiate, encourage or agree to any Company Takeover Proposal knowingly facilitate ("Company Takeover Proposal" means any offer or proposal for, or any indication including by way of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to furnishing non-public information of Company that are supplied to such third party; providedinformation) any inquiries regarding, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice making of any such intent to agree proposal or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice offer that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering makingconstitutes, or that has madecould reasonably be expected to lead to, a Company Takeover Proposal, or whose efforts (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to formulate any other Person material non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Proposal. Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of the Company Subsidiaries and complete copy each of such its and the Company Takeover Proposal notice or Subsidiaries’ Representatives to (i) immediately upon execution of this Plan of Merger, cease any amendment theretosolicitation, if it is in writingencouragement, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Person that may be ongoing with respect to a Company Takeover ProposalProposal as of the date of this Plan of Merger, (ii) request promptly thereafter that such Person promptly return or destroy all confidential information concerning Company and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Independent Bank Corp /Mi/)
No Solicitation by Company. From and after the date of this Agreement until the Effective Time (or, if earlier, the termination and abandonment of this Agreement in accordance with Article VIII), Company and the officersits Subsidiaries shall not, directors, employees or other agents of and Company (collectively, "Company Representatives") will notshall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, indirectly (i) take any action to initiate, solicit, initiate knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries, announcements or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal forcommunications relating to, or the making or submission of any indication of interest inproposal or offer that constitutes or would reasonably be expected to lead to, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of CompanyAlternative Proposal from any Persons, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage in participate in, maintain or continue any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Persons with respect to Company or its Subsidiaries in connection with a Company Alternative Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 6.5 and to limit its conversation or other communication exclusively to such referral), (iii) furnish to any Person any non-public information with respect to, or take any other action intended or reasonably expected to facilitate the making of any inquiry or proposal to Company that constitutes, or would reasonably expected to lead to, any Company Alternative Proposal by any Person, or (iv) accept any Company Alternative Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Company Alternative Proposal or otherwise relating to any Company Alternative Proposal. Within five (5) Business Days following the date hereof, Company shall request that any Person (other than Parent) and its Representatives promptly return or destroy all confidential information concerning Company and its Subsidiaries theretofore furnished thereto by or on behalf of Company or any of its Subsidiaries in connection with a Company Alternative Proposal, and destroy all analyses and other materials prepared by or on behalf of such Person that contain, reflect or analyze such information, in each case in accordance with the applicable confidentiality agreement between Company and such Person. In addition, from the date of this Agreement until the Effective Time, or, if earlier, the termination and abandonment of this Agreement in accordance with Article VIII, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law or release under any confidentiality, standstill or similar agreement (or terminate or fail to enforce such agreement), (B) submit any Company Alternative Proposal or any matter related thereto to a vote of the Company Stockholders, or (C) accept, authorize, cause or permit Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for the consummation of any transaction contemplated by any Company Alternative Proposal or otherwise relating to any Company Alternative Proposal.
Appears in 1 contract
No Solicitation by Company. Company and the officers, directors, employees or other agents of Company (collectively, "Company Representatives") will not, directly or indirectly, (i) take any action to solicit, initiate or encourage or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 4.3 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore with respect to a Company Takeover Proposal.. AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Dairy Fresh Farms Inc.)
No Solicitation by Company. (a) The Company agrees that, prior to the Effective Time, neither it nor any of its Subsidiaries shall, and the that it shall cause its and each of its Subsidiaries’ officers, directors, employees or other employees, advisors, representatives and agents of Company (collectively, "Company Representatives") will notnot to, directly or indirectly, (i) take any action to solicit, initiate or encourage (including by way of providing information), or agree to knowingly facilitate any inquiries, proposals or offers with respect to, or the making or completion of, any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject provide or disclose any non-public information to any Person relating to the terms of the immediately following sentenceCompany or its Subsidiaries in connection with a Company Acquisition Proposal, participate or engage in any discussions or negotiations withconcerning a Company Acquisition Proposal, or disclose otherwise take any nonpublic information relating action to facilitate any effort or attempt to make or implement a Company Acquisition Proposal, (iii) approve, endorse, recommend, agree to or accept, or propose publicly to approve, recommend, endorse, agree to or accept, any Company Acquisition Proposal, (iv) withdraw, modify or amend the Company toRecommendation in any manner adverse to Parent, (v) approve, recommend, endorse, agree to or accept, or afford access propose to approve, recommend, endorse, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal or (vi) resolve, propose or agree to do any of the propertiesforegoing. Without limiting the foregoing, books or records any violation of the restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, to directors, employees, agents or representatives (including any person that has advised investment banker, attorney or accountant retained by the Company that it may be considering making, or that has made, a the Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal Subsidiaries) shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination 4.3(a) by the Company. The Company Board of Directors shall promptly inform its advisors and provides Parent with a true and complete copy representatives of the Superior Company’s obligations under this Section 4.3(a). The Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company agrees that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any persons Persons conducted heretofore with respect to a any Company Takeover ProposalAcquisition Proposal (except with respect to the transactions contemplated by this Agreement).
Appears in 1 contract
No Solicitation by Company. (a) During the term of this Agreement the Company agrees that it and the officers, directors, employees or other agents of Company (collectively, "Company Representatives") its Subsidiaries will not, directly or indirectlyand the Company shall use its best efforts to cause the Representatives of the Company and of its Subsidiaries not to, (i) solicit, initiate, induce, knowingly facilitate or encourage the making by any Person (other than Parent and its Subsidiaries) of any Acquisition Proposal or Acquisition Inquiry or take any action actions that would reasonably be expected to solicit, initiate or encourage or agree lead to any Company Takeover Acquisition Proposal ("Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or Acquisition Inquiry; (ii) subject enter into discussions or negotiations with any Person in furtherance of an Acquisition Inquiry or to obtain an Acquisition Proposal; (iii) approve, endorse or recommend any Acquisition Proposal or Acquisition Inquiry; (iv) furnish any nonpublic information regarding the terms Company or any of the its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; or (v) enter into any Contract with respect to any Acquisition Proposal or Acquisition Inquiry. The Company shall take, and shall cause its Subsidiaries to take, all actions reasonably necessary to cause its Representatives to immediately following sentence, engage in cease any discussions or negotiations with, with any party or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, parties with respect to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives nothing in this Section 6.4 shall not agree to or endorse any Company Takeover Proposal and preclude the Company Board or any of Directors shall not withdraw its recommendation Representatives from contacting any such party or parties solely for the purpose of complying with the provisions of the Merger and adoption last sentence of this Agreement unless Section 6.4(a). The Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will shall promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person each Person that has advised Company that it may be considering making, or that has made, heretofore executed a Company Takeover confidentiality agreement in connection with its consideration of an Acquisition Proposal, if any, to return or whose efforts destroy all confidential information heretofore furnished to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person Person by or persons), and will keep Parent fully informed on behalf of the status Company and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore with respect to a Company Takeover Proposalits Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Paradigm Holdings, Inc)
No Solicitation by Company. (a) The Company shall not and shall cause the officersCompany Bank not to, directors, employees or other agents of and shall use and cause the Company (collectively, "Company Representatives") will notBank to use their reasonable best efforts to cause their respective Representatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into, any Company Alternative Acquisition Agreement. The Company shall, and shall cause the Company Bank and the Representatives of the Company and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Bank to, (3A) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons person conducted heretofore with respect to any Company Acquisition Proposal, and (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which the Company, the Company Bank or any of their respective Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the approval of this Agreement by its shareholders, (1) the Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to violate its fiduciary duties under applicable Law, then the Company may (and may authorize the Company Bank and Representatives to) (x) furnish non-public information with respect to the Company and the Company Bank to the person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the letter by and between Parent and the Company, dated as of August 5, 2022; provided, that any non-public information provided to any person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Company Acquisition Proposal (and such person’s Representatives) regarding such Company Acquisition Proposal; provided, however, that in the event that the Company has received an unsolicited Company Acquisition Proposal following the date of this Agreement and prior to approval by the Company’s shareholders of this Agreement, which Company Acquisition Proposal the Company Board believes in good faith to be bona fide but the terms of which require clarification, then the Company Board may, regardless of the conditions set forth in subparts (3) and (4) of this sentence (such conditions not being deemed applicable for purposes of this proviso), request from the person who submitted such Company Acquisition Proposal such additional information as may be reasonably required to clarify such Company Acquisition Proposal and, provided further, that such Company Acquisition Proposal needing clarification was not the result of a material violation of Section 7.3(a) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Home Federal Bancorp, Inc. Of Louisiana)
No Solicitation by Company. Company shall not, and the will cause its subsidiaries, and its and its subsidiaries’ respective officers, directors, employees affiliates, employees, agents and representatives (including any investment banker, attorney, accountant or other agents advisor or representative retained by, or otherwise working on behalf of, Company or any of Company its subsidiaries whether on the date hereof or any time thereafter) (collectively, "Company “Representatives"”) will not, not to directly or indirectly, : (i) take any action to solicit, initiate initiate, seek, knowingly encourage, knowingly facilitate or encourage or agree knowingly induce any Acquisition Proposal (as defined in Section 6.5(f)(i)), any inquiry with respect to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or the making, submission or announcement of, any indication of interest inAcquisition Proposal, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentence, participate or otherwise engage in any discussions or negotiations withregarding, or disclose furnish to any person any nonpublic information relating to the Company with respect to, or afford access to the properties, books take any other action (including granting any person a waiver or records of the Company, release under any standstill or similar agreement with respect to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption class of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors equity security of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing or any of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view subsidiaries, other than the transaction as contemplated by this Agreement Agreement) to facilitate, any Acquisition Proposal, any inquiry with respect to any Acquisition Proposal or the making, submission or announcement of any proposal that constitutes or would reasonably be expected to lead to, any Acquisition Proposal (any such more favorable Company Takeover Proposal being referred to in this Agreement other than the notification of third parties as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior existence of these provisions), (iii) approve, endorse or recommend any Acquisition Proposal with respect to Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent its subsidiaries, or (iv) enter into any letter of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third partyintent or similar document or any contract, and provides agreement or commitment (whether binding or has providednot) Parent with all documents containing contemplating or referring otherwise relating to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Acquisition Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writingtransaction contemplated thereby. Company shall immediately cease cease, and shall cause its subsidiaries and Representatives to be terminated immediately cease, any and all existing activities, discussions or negotiations with any persons third parties conducted heretofore with respect to any Acquisition Proposal and, upon Acquiror’s request, shall request the prompt return or destruction of all confidential information previously furnished to any person with which Company, its subsidiaries or Representatives have engaged in any such activities within the twelve (12) month period preceding the date of this Agreement. Company shall, and shall cause its subsidiaries and Representatives to, use commercially reasonable efforts to enforce (and will not waive any provisions of) any confidentiality or standstill agreement (or any similar agreement) which Company or any of its subsidiaries is a Company Takeover party relating to any such Acquisition Proposal. Any breach of the foregoing provisions of this subsection by any of Company’s subsidiaries or Representatives shall be deemed to be a breach by Company.
Appears in 1 contract
No Solicitation by Company. From the date of this Agreement until the Effective Time, or, if earlier, the termination and abandonment of this Agreement in accordance with Article VIII, Company and the officersits Subsidiaries shall not, directors, employees or other agents of and Company (collectively, "Company Representatives") will notshall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, indirectly (i) initiate, solicit, facilitate, support, seek, induce or knowingly encourage (including by way of furnishing non-public information), or take any action to solicit, initiate initiate, facilitate, support, seek, induce or knowingly encourage any inquiries, announcements or agree to any Company Takeover Proposal ("Company Takeover Proposal" means any offer or proposal forcommunications relating to, or the making or submission of any indication of interest inproposal or offer that constitutes or would reasonably be expected to lead to a Company Alternative Proposal from any Persons, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage in participate in, maintain or continue any discussions or negotiations with, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three (3) days prior notice of any such intent to agree or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal, or whose efforts to formulate a Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Company Takeover Proposal notice, request or correspondence or communications related thereto, and shall provide Parent with a true and complete copy of such Company Takeover Proposal notice or any amendment thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons conducted heretofore Persons with respect to Company or its Subsidiaries in connection with a Company Alternative Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 6.5 and to limit its conversation or other communication exclusively to such referral), (iii) furnish to any Person any information with respect to, or take any other action intended or reasonably expected to facilitate the making of any inquiry or proposal to Company that constitutes, or would reasonably expected to lead to, any Company Alternative Proposal by any Person, or (iv) accept any Company Alternative Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Company Alternative Proposal or otherwise relating to any Company Alternative Proposal. Company shall promptly request that any Person and its Representatives promptly return or destroy all confidential information concerning Company and its Subsidiaries theretofore furnished thereto by or on behalf of Company or any of its Subsidiaries, and destroy all analyses and other materials prepared by or on behalf of such Person that contain, reflect or analyze such information, in each case in accordance with the applicable confidentiality agreement between Company and such Person. In addition, from the date of this Agreement until the Effective Time, or, if earlier, the termination and abandonment of this Agreement in accordance with Article VIII, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law or release under any confidentiality, standstill or similar agreement (or terminate or fail to enforce such agreement), (B) submit any Company Alternative Proposal or any matter related thereto to the vote of the Company Members, or (C) accept, authorize, cause or permit Company or any of its Subsidiaries to enter into any arrangement or understanding (whether written or oral), letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for the consummation of any transaction contemplated by any Company Alternative Proposal or otherwise relating to any Company Alternative Proposal. Neither Company Board nor any committee thereof shall (i) change, qualify, withhold, withdraw or modify, or authorize or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, Company Board’s approval of this Agreement, (ii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer, or (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, to Company Members a Company Alternative Proposal.
Appears in 1 contract
No Solicitation by Company. (a) Company shall not and the officers, shall cause its Subsidiaries and their directors, officers and employees or not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other agents of Company (collectively, "Company Representatives") will notRepresentatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (Person any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (each, a “Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or personsAlternative Acquisition Agreement”), and will keep Parent fully informed of the status and details of any such . Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of its Subsidiaries and complete copy the Representatives of such Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons Person conducted heretofore with respect to any Company Acquisition Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to result in to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) of this Section 5.3(a) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal, or (z) terminate this Agreement pursuant to Section 7.1(d)(iii) to enter into a Company Alternative Acquisition Agreement with respect to such Company Acquisition Proposal.
Appears in 1 contract
No Solicitation by Company. (a) Company shall not and the officers, shall cause its Subsidiaries and their directors, officers and employees or not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other agents of Company (collectively, "Company Representatives") will notRepresentatives not to, directly or indirectly, (i) take any action to solicit, initiate initiate, endorse, or knowingly encourage or agree facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that is reasonably likely to lead to any Company Takeover Proposal ("Company Takeover Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company, other than the transactions contemplated by this Agreement, or (ii) subject to the terms of the immediately following sentenceenter into, engage continue or otherwise participate in any discussions or negotiations withregarding, or disclose any nonpublic information relating to the Company to, or afford access to the properties, books or records of the Company, furnish to any person that has advised Company that it may be considering making, or that has made, a Company Takeover Proposal. Notwithstanding the immediately preceding sentence, if, prior to adoption of this Agreement by Company stockholders, an unsolicited written Company Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after advice from its financial advisor and after considering all terms and conditions of such written Company Takeover Proposal, including the likelihood and timing of its consummation) that such Company Takeover Proposal would result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (Person any such more favorable Company Takeover Proposal being referred to in this Agreement as a "Superior Company Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary to do so in order for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, then Company Representatives may furnish in connection therewith information to the party making such Superior Company Proposal and, subject to the provisions hereof, engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event the Company notifies Parent of such determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Company Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; providedor data with respect to, however, that Company provides such non-public information only pursuant to a non-disclosure agreement; and provided further that Company Representatives shall not agree to or endorse any Company Takeover Proposal and the Company Board of Directors shall not withdraw its recommendation of the Merger and adoption of this Agreement unless Company has provided Parent at least three Acquisition Proposal, (3iii) days prior notice of any such intent to agree approve or endorse such Company Takeover Proposal or to withdraw such recommendation. Company will promptly (and in any event within 24 hours) notify Parent after receipt of recommend any Company Takeover Proposal or any notice that any person is considering making a Company Takeover Proposal or any request for non-public information relating to Company or for access to the properties, books or records of Company by any person that has advised Company that it may be considering making, or that has made, a Company Takeover Acquisition Proposal, or whose efforts (iv) approve or recommend, or propose publicly to formulate approve or recommend, or execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (each, a “Company Takeover Proposal would be assisted thereby (such notice to include the identity of such person or personsAlternative Acquisition Agreement”), and will keep Parent fully informed of the status and details of any such . Company Takeover Proposal notice, request or correspondence or communications related theretoshall, and shall provide Parent with a true cause each of its Subsidiaries and complete copy the Representatives of such Company Takeover Proposal notice or any amendment theretoand its Subsidiaries to, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall (A) immediately cease and cause to be terminated all existing discussions or negotiations with any persons Person conducted heretofore with respect to any Company Acquisition Proposal, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Takeover Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal, or (z) terminate this Agreement pursuant to Section 7.1(d)(iii) to enter into a Company Alternative Acquisition Agreement with respect to such Company Acquisition Proposal.
Appears in 1 contract
