No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shall, and that it shall direct and use its reasonable best efforts to cause its and FCBS Bank’s Representatives not to, directly or indirectly: (i) encourage, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any Person with respect to an Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement. (b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal or inquiry (as the case may be) and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal. (c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law. (d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal. (e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if: (i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof; (ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and (iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period. (f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination. (g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement. (h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shallThe Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal or Acquisition Transaction.
(b) Other than with respect to the transactions with Parent contemplated by this Agreement, the Company shall not, and that it the Company shall direct and use its reasonable best efforts to cause its officers, directors, Affiliates, securityholders, Employees, agents, any investment banker, attorney, other advisor and FCBS Bank’s Representatives representative retained by it (all of the foregoing collectively being the “Company Representatives”) to not to, directly or indirectly: , (i) encouragesolicit, initiate, solicit seek, entertain, encourage, facilitate, support or take induce (or assist in or cooperate with any other action designed to facilitate an Acquisition Proposal or Person in) the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininquiry, any inquires or the making expression of any interest, proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to to, an Acquisition Proposal; (iii) engage in discussions with any Person with respect to Proposal or an Acquisition ProposalTransaction, (ii) enter into, participate in, maintain or continue any discussions, communications (except solely to notify such Person provide written notice as to the existence of these provisions and refer such provisions) or negotiations regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or an Acquisition Transaction, or otherwise take any action to facilitate any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or an Acquisition Transaction, (iii) disclose or make available any information not customarily disclosed to any Person concerning the Company’s businesses, properties, assets or technologies, or afford to this Agreement; any Person access to its properties, technologies, books or records, (iv) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any inquiry, expression of interest, proposal or offer that constitutes, or propose would reasonably be expected to approvelead to, endorsean Acquisition Proposal or an Acquisition Transaction, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding other Contract contemplating or otherwise relating to an Acquisition Proposal or an Acquisition Transaction, (vi) submit an Acquisition Proposal or an Acquisition Transaction to the vote of any securityholders of the Company, or (vii) consummate or otherwise effect a transaction providing for any transaction contemplated by an Acquisition Proposal or an Acquisition Transaction.
(c) The Company shall immediately notify Parent orally and in writing after receipt by the Company and/or any Company Representatives of (i) any Acquisition Proposal; , (ii) any inquiry, proposal or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees offer that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of FCBS Shareholders’ Meeting, FCBS Bankconstitutes, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could would reasonably be expected to lead to a Superior Proposalto, thenan Acquisition Proposal or an Acquisition Transaction, subject to its compliance with this Section 6.3 and after giving (iii) any other notice to CVBF may (i) furnish information with respect to FCBS to the that any Person who has made such is considering making an Acquisition Proposal, or (iv) any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such request for information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such by any Person or its Representatives, and Persons (iiother than Parent) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to to, or be used for the consideration of, an Acquisition Proposal Proposal. Such notice shall describe (in each case within two (2A) Business Days of receipt thereof), specifying the material terms and conditions thereof of such Acquisition Proposal, inquiry, proposal, offer, notice or request, and (B) the identity of the Person or Group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder) making any such Acquisition Proposal, inquiry, proposal, offer, notice or request. The Company shall keep Parent fully informed of the status and details of, and any modification to, any such Acquisition Proposal, inquiry, proposal or offer and any correspondence or communications related thereto and shall provide to Parent a true, correct and complete copy of such Acquisition Proposal, inquiry, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Parent with 72 hours’ prior notice (or such lesser prior notice as is provided to the members of the Company Board of Directors) of any meeting of the Company Board of Directors at which the Company Board of Directors is reasonably expected to discuss an Acquisition Proposal or inquiry an Acquisition Transaction.
(as d) The Company shall be deemed to have breached the case terms of this Section 5.1 if any Company Representative shall take any action that is prohibited by this Section 5.1 to be taken by the Company. The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 5.1 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek and obtain, without any proof of actual damages, an injunction or injunctions to prevent breaches of the provisions of this Section 5.1 and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent may be) and FCBS be entitled at law or in equity. Parent shall use its reasonable best efforts not be required to provide to CVBF a copy of all written materials provided to FCBS Bank any bond or other security in connection with any such Acquisition Proposal not later than 48 hours after the receipt injunction or order or decree of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial specific performance or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposalrelated Action.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
Appears in 1 contract
Samples: Merger Agreement (Fusion-Io, Inc.)
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank None of the Sellers, the Seller Owners or any of their Affiliates shall, and that it the Sellers and the Seller Owners shall direct cause their respective Affiliates, employees, officers, directors, agents, representatives and use its reasonable best efforts subsidiaries (and their employees, officers, directors, agents and representatives) not to cause its (and FCBS Bank’s Representatives will not authorize any of them to), directly or indirectly: , initiate, solicit, encourage, or facilitate or induce any offer or proposal to (i) encourageinvest in any Seller, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) acquire any of the Purchased Assets or part of the Business or (iii) acquire any significant interest in any Seller whether by merger, consolidation, recapitalization, reorganization, transfer of assets, grant of license or otherwise (an “Acquisition Proposal”), or effect any such transaction, or participate or engage in any discussions or negotiations regarding, or furnish any information to any other Person any nonpublic information with respect to, or take agree to or otherwise enter into, any other action Acquisition Proposal. Each Seller and each Seller Owner represents and warrants to facilitate Buyer that each Seller, each Seller Owner and their respective Affiliates have ceased any and all activities, discussions or negotiations with any third parties conducted on or prior to the submission date hereof with respect to any Acquisition Proposal. Each Seller and Seller Owner shall promptly notify Buyer orally and in writing immediately upon receipt of any Acquisition Proposal or any inquiry or request for information relating to the making of any proposal Purchased Assets or the Business that constitutes or may it reasonably be expected to believes could lead to an Acquisition Proposal; (iii) engage in discussions with any Person with respect to an Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to shall identify the Person who has made making such Acquisition Proposal, inquiry or any of its Representativesrequest, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal Proposal, inquiry or inquiry (as the case may be) request and FCBS shall use its reasonable best efforts to provide to CVBF a true and complete copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify inquiry or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation request. Sellers and if it takes such action, it also may terminate its efforts to holdSeller Owners shall, and cancel or postponeshall direct its representatives to, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or discontinue any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions solicitation efforts or negotiations with respect to or in furtherance of any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shallFrom the date of this Agreement until the Effective Time or, and that it if earlier, the termination of this Agreement in accordance with Section 7.1, except as set forth below, the Company shall direct and use its reasonable best efforts to cause its and FCBS Bank’s Representatives not to, directly or indirectly: , and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to (i) solicit, initiate or knowingly encourage, initiate, solicit induce or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any directly to an Acquisition Proposal; , (ii) participate or engage in furnish any discussions or negotiations regarding, or furnish information regarding any of the Acquired Corporations to any Person any nonpublic information in connection with respect to, or take any other action in response to facilitate the submission of any an Acquisition Proposal or an inquiry or the making indication of any proposal interest that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iii) engage in discussions or negotiations with any Person with respect to an any Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; Proposal or (v) enter into any Acquisition Agreement; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 5.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Proposal or an Acquisition Proposal that the Company Board reasonably believes is likely to result in a Superior Proposal if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached any provision of this Section 5.3, (2) the Company Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Company Board to comply with its fiduciary obligations to the Company’s stockholders under applicable Law, (3) at least 24 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person, the material terms thereof and any term sheet, letter of intent or similar document and draft acquisition agreement or financing documents related thereto and the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) at least 24 hours prior to furnishing any agreementsuch nonpublic information to such Person, commitment the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished or understanding contemplating or otherwise relating made available by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any Acquisition Proposal; or violation of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 5.3(a) by the Company.
(vib) make or authorize any statement, recommendation or solicitation From and after the date of this Agreement the Company shall promptly (and in support no event later than three (3) Business Days after receipt of any Acquisition Proposal. FCBS agrees , any inquiry or indication of interest that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts would reasonably be expected to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect lead to an Acquisition Proposal) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, or indication of interest, and the material terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and shall provide Parent with any relevant documentation related thereto, including but not limited to, proposed merger or other acquisition agreements, financing document, letters, or commitments. FCBS The Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, inquiry or indication of interest and any modification or proposed modification thereto.
(c) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Corporations is a party, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also shall will promptly request that each Person which that has heretofore executed executed, within 12 months prior to the date of this Agreement, a confidentiality agreement in connection with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s its consideration of a possible Acquisition Proposal Transaction or equity investment to return promptly or destroy all confidential information heretofore furnished to such Person by or its Representatives in accordance with on behalf of any of the terms of such Person’s confidentiality agreementAcquired Corporations.
(bd) Notwithstanding Except as expressly provided by Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement5.3(e), if, prior to at any time after the date of FCBS Shareholders’ Meetinghereof, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to neither the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal or inquiry (as the case may be) and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal.
(c) Neither FCBS Company Board nor any committee thereof shall shall: (i) (A) withhold, withdraw, qualify or modify (or amendpublicly propose or resolve to withhold, or propose to withdraw, modify qualify or amendmodify), in a manner adverse to CVBFParent or Merger Sub, FCBS the Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) after the public announcement of the submission of an Acquisition Proposal, fail to publicly reaffirm the Board Recommendation within 10 Business Days after Parent so requests in writing, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within 10 Business Days after the commencement of such Acquisition Proposal on a Schedule TO or resolve (E) fail to do soinclude the Board Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Recommendation Change”); provided, however, that notwithstanding or (ii) cause or permit the foregoing, FCBS Board, Company or any committee thereofof its Subsidiaries to enter into any Acquisition Agreement.
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Required Company Stockholder Vote, the Company may withdraw, or modify or amend effect a Recommendation Change if the Company Board has received an Acquisition Proposal that it determines in a manner adverse to CVBF, FCBS Board Recommendation good faith (after consultation with its independent financial advisors and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives outside legal counsel) constitutes a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, faith (after consultation with its outside independent financial advisors and legal counsel counsel) that such action is required in order for the Company Board to comply with its fiduciary obligations to the Company stockholders under applicable Law, provided that (A) the Company has not breached any of Section 5.3, (B) the Company shall have given Parent at least two (2) Business Days’ prior written notice of its intention to take such action (which may be its current notice shall specify the material terms and conditions of any such Superior Proposal and the identity of the party making such Superior Proposal) and, no later than the time of such notice, provided Parent a copy of the relevant proposed transaction agreement and other material documents (including but not limited to any financing documents) with the party making such Superior Proposal, (C) if requested by Parent, the Company shall have negotiated in good faith with Parent during such two (2) Business Day notice period to enable Parent to propose changes to the terms of this Agreement that would cause such Superior Proposal to no longer constitute a Superior Proposal, (D) the Company Board shall have considered in good faith (after consultation with independent financial advisors and outside legal counsel), any changes to this Agreement proposed by Parent and determined that failure the Superior Proposal would continue to take constitute a Superior Proposal if such actions could result changes were to be given effect, and (E) in a breach the event of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition any change to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement financial terms of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained the Company shall, in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall each case, have first provided prior written delivered to Parent an additional notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt and copies of the notice referred to in clause relevant proposed transaction agreement and other material documents and the two (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (52) Business Day periodnotice period shall have recommenced.
(f) In the event of any termination of Nothing contained in this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS 5.3 shall be permitted deemed to comply with prohibit the Company or the Company Board from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-914d-9 or Rule 14e-2(a) under the Exchange Act, or (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14e-2 or Item 1012 of Regulation M-A promulgated 14d-9(f) under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit event shall the Company or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Company Board or any committee thereof takestake, agrees agree or resolves resolve to take any action permitted prohibited by this Section 6.3 without FCBS Bank 5.3(e) (it being understood that a “stop, look and listen” letter or any of its Representatives breaching any similar communication of the terms of this Section 6.3, including, but type contemplated by Rule 14d-9(f) under the Exchange Act shall not limited to any be deemed a modification of the actions set forth in Section 6.3(c) Company Board’s approval or recommendation of the Merger and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBSAgreement).
Appears in 1 contract
Samples: Merger Agreement ('Mktg, Inc.')
No Solicitation of Acquisition Proposals. (a) FCBS During the Pre-Closing Period, the Principal Stockholder agrees that neither it nor FCBS Bank shallthe Principal Stockholder shall not, and that it the Principal Stockholder shall direct and use not authorize or permit any of the Principal Stockholder’s officers, directors, or employees to, or authorize any of its reasonable best efforts to cause Affiliates (other than its and FCBS Bank’s Representatives not portfolio companies), stockholders or any investment banker, attorney or other advisor or representative retained by the Principal Stockholder to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit knowingly encourage or take any other action designed to facilitate an Acquisition Proposal otherwise knowingly facilitate, or induce the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininquiry, any inquires or the making expression of any interest, proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any an Acquisition Proposal; , (iib) enter into, participate in, maintain or engage in continue any discussions or negotiations regarding, or deliver or make available or furnish to any Person any nonpublic non-public information with respect to, or take any other action to facilitate the submission regarding, any inquiry, expression of any inquiry interest, proposal or the making of any proposal offer that constitutes constitutes, or may would reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any Person with respect to to, an Acquisition Proposal, except (c) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) agree to, accept, approve, endorse or recommend, or propose to approve, endorse, or recommend ) any Acquisition Proposal; , (vd) enter into any letter of intent or similar document or any agreement, commitment or understanding other Contract contemplating or otherwise relating to any Acquisition Proposal; Proposal or (vie) make or authorize any statement, recommendation or solicitation in support of submit any Acquisition ProposalProposal to the vote of the Company Stockholders. FCBS agrees that it The Principal Stockholder shall immediately terminate cease and shall cause FCBS Bankto be terminated any and all existing activities, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, Persons conducted prior to or on the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal or inquiry (as the case may be) and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations Agreement with respect to any Acquisition Proposal and Proposal. If, during the material terms and conditions that are Pre-Closing Period, the subject Principal Stockholder receives (in his, her, or its capacity as such) any inquiry, proposal or offer of the nature described in this Section 4, the Principal Stockholder shall, within one (1) Business Day after such receipt, notify Buyer of such discussions inquiry, proposal or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect offer, including, subject to the information previously provided, pursuant to this Section 6.3(d), by FCBS confidentiality obligations in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after effect on the date of this the Merger Agreement and prior to binding on the date of FCBS Shareholders’ MeetingCompany, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt identity of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written other party and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3such inquiry, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBSproposal or offer.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shallThe Company and its Subsidiaries shall immediately cease any and all existing discussions (other than to state the Company's obligations set forth in this Section 5.2) or negotiations with any Persons (other than Parent, Merger Sub and their respective Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company will promptly, following the execution of this Agreement, request the return or destruction (unless limited by the applicable agreement) of all confidential information provided by or on behalf of the Company to all Persons who have had any discussions or negotiations or who have entered into confidentiality agreements with the Company pertaining to any Acquisition Proposal or any similar business combination and otherwise enforce its rights under such confidentiality agreements.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 8.1 and the Effective Time, the Company and its Subsidiaries shall not, and that it they shall direct and use not authorize or knowingly permit their respective directors, officers or other employees, controlled Affiliates, or any investment banker (in its reasonable best efforts to cause its and FCBS Bank’s Representatives not capacity as an investment banker), attorney, accountant, consultant, advisor or other authorized agent or representative retained by any of them (collectively, "Representatives") to, directly or indirectly: , (i) encouragesolicit, initiate, solicit knowingly facilitate or take any other action designed to facilitate an Acquisition Proposal or intentionally induce the making, submission or announcement of any of, assist or knowingly encourage, an Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (ii) other than in the ordinary course of business, consistent with past practice, and not with the intent of inducing or encouraging any Acquisition Proposal, furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) or waive restrictions on the use of any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, (iii) participate or engage in discussions (other than discussions with respect to the Company's obligations set forth in this Section 5.2) or negotiations with any Person (other than Parent, Merger Sub and their respective Representatives) with respect to an Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommendrecommend an Acquisition Proposal, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding Contract contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement(other than an Acceptable Confidentiality Agreement as contemplated by Section 5.2(c)(ii)).
(bc) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained set forth in this Section 5.2 or elsewhere in this Agreement, if, prior to the Acceptance Time, the Company, the Company's Subsidiaries, the Company's Representatives and the Company's Subsidiaries' Representatives may, subject to compliance with this Section 5.2(c),
(i) participate or engage in discussions or negotiations with any Person or group of Persons that has made a bona fide Acquisition Proposal after the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did this Agreement not result arising from a breach of this Section 6.3(a) and appears, on its face to be bona fide, and FCBS 5.2 that the Company's Board of Directors (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof)and outside legal counsel, that such Acquisition Proposal either constitutes or could would reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and Proposal and/or (ii) participate in discussions and negotiations with such furnish to any Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing or group of the receipt of any Acquisition Proposal, or any inquiry Persons that could reasonably be expected to lead to an has made a bona fide Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal or inquiry (as the case may be) and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result arising from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal 5.2 that FCBS the Board of Directors of the Company (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, any non-public information relating to the Company and/or any of its Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other nonpublic information, or to any personnel, of the Company and/or any of its Subsidiaries, in each case under this clause (which may be FCBS Financial Advisor or any affiliate thereof), is ii) pursuant to a confidentiality agreement no more favorable to the shareholders maker of FCBS as such Superior the Acquisition Proposal and whichno less favorable to the Company and its Subsidiaries than the Confidentiality Agreement (provided, by that such confidentiality agreement shall not in any way restrict the Company from complying with its termsobligations under this Agreement, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In including with respect to the event of any termination of Company's disclosure obligations to Parent under this Agreement by FCBS pursuant with respect to Section 6.3(eany Acquisition Proposal) (an "Acceptable Confidentiality Agreement"), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS copy of which shall be permitted provided, promptly after its execution, for informational purposes only, to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange ActParent; provided, however, that compliance with such rules and items will in no way limit the case of any action taken pursuant to the preceding clauses (i) or modify (ii), (A) the effect Company shall as promptly as reasonably practicable (and, in any event, within forty-eight (48) hours following receipt of such action pursuant Acquisition Proposal) give Parent written notice of such Acquisition Proposal and, if applicable, provide Parent with copies of the Acquisition Proposal and any draft agreements relating to the Acquisition Proposal (or, if written copies are unavailable, a summary of the material terms thereof), and (B) promptly after furnishing any nonpublic information or giving access to such rules Person or group of Persons, the Company shall give such access and items would otherwise have under this Agreementfurnish such nonpublic information to Parent (which may be by posting such information to a "virtual data room" available to Parent and its Representatives) to the extent such access or information has not been previously furnished to Parent.
(hd) If FCBS Board the Company becomes aware of any receipt by the Company of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any committee thereof takesinquiry with respect to, agrees or resolves which would reasonably be expected to take lead to, any action permitted by this Section 6.3 without FCBS Bank or Acquisition Proposal, the Company shall (A) reasonably promptly (and in any of its Representatives breaching any event, within forty-eight (48) hours) notify Parent of the terms and conditions of this Section 6.3such Acquisition Proposal, includingrequest or inquiry, but not limited and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry and (B) provide to Parent as soon as reasonably practicable (and in any event within forty-eight (48) hours) after receipt or delivery thereof copies of any written material (including draft agreements) relating to the material terms and conditions of any Acquisition Proposal exchanged between the Company (or its Representatives), on the one hand, and the Person making such Acquisition Proposal (or its Representatives), on the other hand. The Company shall keep Parent reasonably informed of any material change in the status or terms of any such Acquisition Proposal, request or inquiry as promptly as reasonably practicable and shall provide any material updates to any of the actions set forth in Section 6.3(c) and Section 6.3(edocuments provided under clause (B) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
No Solicitation of Acquisition Proposals. (a) FCBS agrees that From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Section 7.1, except as otherwise provided in this Section 5.3, neither it nor FCBS Bank Telkonet Company shall, and that it shall direct and use its reasonable best efforts to cause its and FCBS Bank’s Representatives not to, directly or indirectly: , nor shall either Telkonet Company direct their respective Representatives to (i) solicit, initiate or knowingly encourage, initiate, solicit induce or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result inProposal, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in furnish any discussions or negotiations regarding, or furnish nonpublic information regarding either of the Telkonet Companies to any Person any nonpublic information in connection with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead in response to an Acquisition Proposal or an inquiry or indication of interest with respect to a potential Acquisition Proposal; , (iii) engage in discussions negotiations with any Person with respect to an any Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; or (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent Acquisition Agreement; provided, however, that prior to the Required Telkonet Shareholder Vote, this Section 5.3(a) shall not prohibit Telkonet from furnishing nonpublic information regarding the Telkonet Companies to, or similar document or entering into discussions with, any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or Person (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to including such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of FCBS Shareholders’ Meeting, FCBS Bankand financing sources), or any of their respective Representatives, receives a written Acquisition Proposal from entering into an Acceptable Confidentiality Agreement with any Person, which in response to a Superior Proposal or an Acquisition Proposal that the Telkonet Board reasonably believes is likely to result in a Superior Proposal if (1) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 6.3(a5.3, (2) and appears, on its face to be bona fide, and FCBS the Telkonet Board (or any committee thereof) determines concludes in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof)outside legal counsel, that such action is required for the Telkonet Board to comply with its fiduciary obligations to Telkonet’s shareholders under applicable Law, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Telkonet gives VDA written notice of the identity of such Person, the material terms thereof and any term sheet, letter of intent or similar document and draft Acquisition Agreement or financing documents related thereto and Telkonet’s intention to furnish nonpublic information to, or enter into discussions with, such Person (subject, in each case, to the terms of any Acceptable Confidentiality Agreement), and Telkonet receives from such Person an executed Acceptable Confidentiality Agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Telkonet, and (4) at least 48 hours prior to furnishing any such nonpublic information to such Person, Telkonet furnishes such nonpublic information to VDA (to the extent such nonpublic information has not been previously furnished or made available by Telkonet to VDA). For the avoidance of doubt, it shall not be a violation of this Section 5.3(a) if the Telkonet Companies and/or their Representatives contact a third Person making any Acquisition Proposal which has been made without a violation of this Section 5.3 solely to clarify the terms and conditions of such Acquisition Proposal and to determine whether it constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 .
(b) From and after giving notice to CVBF may the date of this Agreement, Telkonet shall promptly (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the no event later than three (3) Business Days after receipt of any Acquisition Proposal, any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal) advise VDA orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that could would reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and including the identity of the Person making or submitting such Acquisition Proposal Proposal, inquiry, or inquiry (as indication of interest, and the case may bematerial terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection VDA with any such relevant documentation related thereto (within three (3) Business Days of receipt by the Telkonet Board), including but not limited to, proposed merger or other Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank andAgreements, financing document, letters, or commitments, subject, in order to be able to do soeach case, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing terms of any material modifications Acceptable Confidentiality Agreement permitted under Section 5.3(a). Telkonet shall keep VDA reasonably informed with respect to the financial or other material terms status of any such Acquisition Proposal Proposal, inquiry or inquiry indication of interest and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to any modification or by FCBS Bank in connection with any such Acquisition Proposalproposed modification thereto.
(c) Neither FCBS Board nor Telkonet agrees not to release or permit the release of any committee thereof shall withdraw, modify or amendPerson from, or propose to withdrawwaive or permit the waiver of any provision of, modify any confidentiality, “standstill” or amendsimilar agreement to which either of the Telkonet Companies is a party, in a manner adverse and will use its commercially reasonable efforts to CVBF, FCBS Board Recommendation enforce or resolve cause to do sobe enforced each such agreement at the request of VDA; provided, however, provided that notwithstanding the foregoing, FCBS BoardTelkonet shall be permitted to waive, amend, release or fail to enforce any committee thereofprovision of any confidentiality, may withdraw, “standstill” or modify or amend in a manner adverse to CVBF, FCBS similar obligation of any Person if the Telkonet Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel counsel, that the failure to take such action would be inconsistent with its fiduciary duties under any applicable Law. Telkonet also will promptly request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return or destroy all confidential information heretofore furnished to such Person by or on behalf of either of the Telkonet Companies.
(d) Except as expressly provided by Section 5.3(e), neither the Telkonet Board nor any committee thereof shall: (i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to VDA, the Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) after the public announcement of the submission of an Acquisition Proposal, fail to publicly reaffirm the Board Recommendation within seven Business Days after VDA so requests in writing (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within 10 Business Days after the commencement of such Acquisition Proposal on a Schedule TO or (E) fail to include the Board Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Recommendation Change”); or (ii) cause or permit Telkonet or the Telkonet Subsidiary to enter into any Acquisition Agreement.
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Required Telkonet Shareholder Vote, Telkonet may effect a Recommendation Change if the Telkonet Board has received an Acquisition Proposal that it determines in good faith (after consultation with its independent financial advisors and outside legal counsel) constitutes a Superior Proposal and determines in good faith (after consultation with its independent financial advisors and legal counsel) that such action is required for the Telkonet Board to comply with its fiduciary obligations to Telkonet shareholders under applicable Law; provided, that (A) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.3 (B) Telkonet shall have given VDA at least two Business Days’ prior written notice of its intention to take such action, and if applicable, intends to cause Telkonet or any of its Subsidiaries to enter into such Acquisition Agreement (which may be its current notice shall specify the material terms and conditions of any such Superior Proposal and the identity of the party making such Superior Proposal) and, no later than the time of such notice, provided VDA a copy of the relevant proposed transaction agreement and other material documents (including but not limited to any financing documents) with the party making such Superior Proposal, subject, in each case, to the terms of an Acceptable Confidentiality Agreement, (C) if requested by VDA, Telkonet shall have negotiated in good faith with VDA during such two Business Day notice period to enable VDA to propose changes to the terms of this Agreement that would cause such Superior Proposal to no longer constitute a Superior Proposal, (D) the Telkonet Board shall have considered in good faith (after consultation with independent financial advisors and outside legal counsel), any changes to this Agreement proposed by VDA and determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect, and (E) in the event of any change to the financial terms of such Superior Proposal, Telkonet shall, in each case, have delivered to VDA an additional notice and copies of the relevant proposed transaction agreement and other material documents and the two Business Day notice period shall have recommenced, subject, in each case, to the terms of an Acceptable Confidentiality Agreement.
(f) Nothing contained in this Section 5.3 shall be deemed to prohibit Telkonet or the Telkonet Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act, or (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that in no event shall Telkonet or the Telkonet Board or any committee thereof take, agree or resolve to take any action prohibited by Section 5.3(e) (it being understood that a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed a modification of the Telkonet Board’s approval of the Contemplated Transactions and this Agreement or the Board’s recommendation that the shareholders approve the Amendment and the Securities Issuances), or (iii) making any other required disclosure to the Telkonet shareholders if the Telkonet Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such actions could result action would be inconsistent with any applicable securities Laws, it being understood that nothing in the foregoing will be deemed to permit Telkonet or the Telkonet Board to effect a breach of FCBS Board’s fiduciary obligations under Governing LawRecommendation Change other than in accordance with Section 5.3(e).
(dg) In addition Nothing in this Agreement shall prohibit or restrict the Telkonet Board, in circumstances not involving or relating to an Acquisition Proposal (which for the obligations set forth avoidance of doubt is addressed in Sections 6.3(a) and 6.3(b5.3(a)-(f)), FCBS shall from effecting a Recommendation Change in response to an Intervening Event, if, and only if, (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Telkonet Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make a Recommendation Change would reasonably be likely to be inconsistent with its financial advisor fiduciary duties as directors under applicable Law, (which may be FCBS Financial Advisor ii) Telkonet has notified VDA in writing, at least two business days in advance of such Recommendation Change, that it is considering taking such action and specifying in reasonable detail the reasons therefore, and (iii) during such two business day period, Telkonet has considered, and at the reasonable request of VDA, engaged in good faith discussions with VDA regarding, any adjustments proposed in writing by VDA to the terms and conditions of this Agreement, should VDA propose any such adjustments, and the Telkonet Board (or any affiliate a committee thereof), is more favorable after consultation with its outside legal counsel, shall have determined in good faith that such proposed changes do not obviate the need for the Telkonet Board to effect a Recommendation Change and that the shareholders failure to make a Recommendation Change would be inconsistent with its fiduciary duties as directors under applicable Law. For avoidance of FCBS as such Superior Proposal doubt, a Recommendation Change due to an Intervening Event shall be deemed a Telkonet Triggering Event and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of shall entitle VDA to terminate this Agreement by FCBS pursuant to under Section 6.3(e7.1(e)(ii), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items which will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any also require payment of the terms of this Section 6.3, including, but not limited to any of the actions Telkonet Termination Fee as set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS7.3(b).
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shallFrom the date of this Agreement until the earlier of the Closing or the termination of this Agreement, each of the Sellers shall not, and that it shall direct and use its reasonable best efforts to cause its Affiliates and FCBS Bank’s Representatives its respective employees, members, managers, agents and representatives, including any investment banker, attorney or accountant retained by either Seller or any of its Affiliates, not to, directly or indirectly: indirectly through another Person, (i) encouragesolicit, initiate, solicit entertain, consider, encourage, accept or take otherwise facilitate any other action designed to facilitate an Acquisition Proposal inquiries (including by way of furnishing any non-public information or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires otherwise) or the making of any inquiry, proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to from any Person any nonpublic information with respect to, which constitutes an Acquisition Proposal (or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any Person with respect to an Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (viii) make or authorize participate in any statement, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bank, and use its reasonable best efforts to cause FCBS Bank’s Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to regarding an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it For purposes of this Agreement, “Acquisition Proposal” means any direct or FCBS Bank indirect inquiry, proposal or offer (or any of FCBS Bank’s Representatives with respect improvement, restatement, amendment, renewal or reiteration thereof) relating to such Person’s consideration any direct or indirect (A) acquisition or purchase of a possible Acquisition Proposal majority of the membership interests of or other equity interest in either of the Sellers, (B) a merger, consolidation or other business combination transaction involving the Sellers, unless the surviving or resulting entity has agreed to return promptly assume all of the obligations of each of the Sellers under this Agreement, or destroy all confidential information heretofore furnished to such Person (C) sale of any portion of the assets of the Fishers Distribution Center or its Representatives the Transferred Assets (other than sales of Products in accordance with the terms ordinary course of such Person’s confidentiality agreementbusiness) of the Sellers, other than the transactions contemplated by this Agreement.
(b) Notwithstanding Section 6.3(aSellers shall promptly (but in any event within one Business Day) or anything to notify the contrary that may be contained elsewhere in this Agreement, if, prior to the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF Purchaser orally and in writing of any Acquisition Proposal or any inquiry regarding the receipt making of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (indicating, in each case within two (2) Business Days of receipt thereof)connection with such notice, specifying the material terms and conditions thereof and the identity name of the Person making such Acquisition Proposal or inquiry (as and the case may be) terms and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms conditions of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposalinquiry.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) FCBS agrees that neither it nor FCBS Bank shallUntil the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not, and that it shall direct and use cause each of its reasonable best efforts to cause its and FCBS Bank’s Representatives not to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit facilitate or knowingly encourage, or take any action to solicit, initiate, facilitate or knowingly encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Buyer, (b) furnish to any Person other than Buyer any information that Seller believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action designed to facilitate an Acquisition Proposal or the makingregarding any inquiry, submission or announcement expression of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininterest, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to to, an Acquisition Proposal; Proposal or (iiid) engage in discussions with any Person with respect to an Acquisition Proposal, except to notify such Person as to the existence of these provisions and refer such Person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend accept any Acquisition Proposal; (v) Proposal or enter into any letter of intent or similar document or any agreement, commitment arrangement or understanding contemplating providing for the consummation of any transaction contemplated by any Table of Contents Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement. Seller shall, recommendation or solicitation in support of any Acquisition Proposal. FCBS agrees that it shall immediately terminate and shall cause FCBS Bankeach of its Representatives to, immediately cease and use its reasonable best efforts cause to cause FCBS Bank’s Representativesbe terminated any and all existing activities, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. FCBS also shall promptly request that each Person which has heretofore executed a confidentiality agreement with it or FCBS Bank or any of FCBS Bank’s Representatives with respect to such Person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such Person or its Representatives in accordance with the terms of such Person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, Persons conducted prior to or on the date of FCBS Shareholders’ Meeting, FCBS Bank, or any of their respective Representatives, receives a written Acquisition Proposal from any Person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to CVBF may (i) furnish information with respect to FCBS to the Person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to CVBF or is provided to CVBF substantially concurrently with the time it is provided to such Person or its Representatives, and (ii) participate in discussions and negotiations with such Person regarding such Acquisition Proposal. FCBS shall advise CVBF orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the Person making such Acquisition Proposal or inquiry (as the case may be) and FCBS shall use its reasonable best efforts to provide to CVBF a copy of all written materials provided to FCBS Bank in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by FCBS Bank and, in order to be able to do so, FCBS agrees that FCBS Bank will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits FCBS from providing such information to CVBF. FCBS shall notify CVBF (within 48 hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to CVBF, within that same timeframe, a copy of all written materials subsequently provided to or by FCBS Bank in connection with any such Acquisition Proposal.
(c) Neither FCBS Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to CVBF, FCBS Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, FCBS Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to CVBF, FCBS Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, FCBS Shareholders’ Meeting, in the event that FCBS receives a Superior Proposal and FCBS Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of FCBS Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), FCBS shall (i) advise CVBF as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations Agreement with respect to any Acquisition Proposal Proposal, including suspending such Persons’ access to any electronic or physical data room and requesting the material terms and conditions that are the subject return of such discussions or negotiations and (ii) keep CVBF reasonably informed of the status and material details (including material amendments) with respect to the all confidential information previously provided, pursuant to this Section 6.3(d), by FCBS in connection with any such Acquisition Proposal.
(e) FCBS Board (or any committee thereof) may, after the date of this Agreement and prior to the date of FCBS Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect distributed to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by FCBS of its covenants contained in Section 6.3 hereof;
(ii) FCBS Board (or any committee thereof) shall have first provided prior written notice to CVBF that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) CVBF does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that FCBS Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be FCBS Financial Advisor or any affiliate thereof), is more favorable to the shareholders of FCBS as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day periodPersons.
(f) In the event of any termination of this Agreement by FCBS pursuant to Section 6.3(e), FCBS shall pay, as a condition to such termination, the termination fee to CVBF pursuant to Section 11.2(b) as a condition precedent to such termination.
(g) FCBS shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If FCBS Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without FCBS Bank or any of its Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by FCBS.
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