Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 3 contracts
Samples: Merger Agreement (United Bankshares Inc/Wv), Merger Agreement (United Bankshares Inc/Wv), Agreement and Plan of Reorganization (Community Bankers Trust Corp)
Shareholder Approval. CBTC The Company agrees to take, in accordance with applicable law Law and the CBTC Company Articles and the CBTC Company Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly soon as practicable after the Registration Statement Form S-4 is declared effective (but in no event later than forty-five (45) days after the Form S-4 is declared effective), the Company Special Meeting to consider and to obtain the Company Shareholder Approval. The CBTC Subject to Sections 6.9(b) and (c), the Company Board shall at all times prior to and during such Company Special Meeting recommend that such approval and shall use its reasonable best efforts to solicit such approval by its shareholders (the CBTC shareholders approve and adopt “Company Board Recommendation”). Without limiting the generality of the foregoing, unless this Agreement has terminated in accordance with its terms, this Agreement and the transactions contemplated herebyMerger shall be submitted to the Company’s shareholders at the Company Special Meeting whether or not (x) the Company Board shall have effected a Company Adverse Change of Recommendation or (y) any Company Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to the Company or any of its advisors. The Company shall not, without the prior written consent of Parent, adjourn or postpone the Company Special Meeting; provided that the CBTC Board may fail to make such recommendationCompany may, without the prior written consent of Parent, adjourn or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that postpone the Company Special Meeting (A) if on the date on which the Company Special Meeting is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changeoriginally scheduled, the CBTC Board Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the Company Shareholder Approval, the Company shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on adjourn the fifth (5th) business day following delivery of Company Special Meeting until such noticedate as shall be mutually agreed upon by the Company and Parent, which notice date shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the not be less than five (5) business day period referred days nor more than ten (10) days after the date of adjournment, and subject to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable shall continue to use all reasonable best efforts, together with its proxy solicitor, to assist in the CBTC Board solicitation of proxies from shareholders relating to proceed without an Adverse Recommendation Change the Company Shareholder Approval, (it being understood that United shall not be required to propose any such adjustments); and (cB) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counselParent, that if the failure to take such action adjourn or postpone the Company Special Meeting would reasonably be reasonably likely expected to constitute be a breach violation of applicable Law for the distribution of any required supplement or amendment to the Proxy Statement/Prospectus, or (C) after consultation with Parent, for a single period not to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Company Shareholder Approval. Parent may require the Company to adjourn, delay or postpone the Company Special Meeting once for a period not to exceed thirty (30) calendar days (but prior to the date that is two (2) Business Days prior to the End Date) to solicit additional proxies necessary to obtain the Company Shareholder Approval. Once the Company has established the record date, in respect of the fiduciary duties Company Special Meeting (the “Company Record Date”), the Company shall not change such Company Record Date or establish a different Company Record Date for the Company Special Meeting without the prior written consent of Parent, unless required to do so by applicable Law or the members of Company Articles or the CBTC Board under applicable lawCompany Bylaws.
Appears in 3 contracts
Samples: Merger Agreement (Bank of Commerce Holdings), Merger Agreement (Bank of Commerce Holdings), Merger Agreement (Columbia Banking System, Inc.)
Shareholder Approval. CBTC agrees to (a) Seller shall take, in accordance with applicable law South Carolina Law and the CBTC Restated Articles of Incorporation and the CBTC BylawsBy-Laws of Seller, all action necessary to convene an appropriate meeting of its shareholders of Seller to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders of the Seller for consummation of the Merger transactions contemplated by this Agreement and the Ancillary Agreements (including any adjournment or postponementpostponement thereof, the “CBTC "Shareholders Meeting”), ") as promptly as practicable after the Registration Proxy Statement (as hereinafter defined) is declared effective. The CBTC Board cleared by the SEC.
(b) Except as expressly permitted by this Section 5.22, the board of directors of Seller (i) shall at all times recommend that approval of the CBTC shareholders approve Acquisition (and adopt the Agreement and any other matters necessary for consummation of the transactions contemplated hereby; provided that hereby and by the CBTC Board may fail Ancillary Agreements) by Seller's shareholders and shall not withdraw or modify or propose publicly to make such recommendation, or change, withdraw, modify or qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedBuyer such recommendation and shall take all reasonable, lawful action to solicit such approval by the shareholders of Seller, (ii) shall not approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal, (an “Adverse Recommendation Change”)iii) shall cause Seller not to enter into any letter of intent, if the CBTC Board hasagreement in principle, after having consulted with its financial advisor acquisition agreement or other similar undertaking with respect to financial matters an Acquisition Proposal and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach (iv) promptly after clearance of the fiduciary duties Proxy Statement by the SEC, Seller shall mail the Proxy Statement to the shareholders of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (Seller. In connection with a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior bona fide Acquisition Proposal (and include that is a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if the board of directors of Seller shall be excused from its obligations under clauses (i) to (iii) of this Subsection 5.22(b) and shall be permitted to withdraw, modify or qualify its recommendation to its shareholders if, but only if, (w) in the opinion of Seller's outside counsel, such withdrawal, modification or qualification is required in order for the board of directors of Seller to comply with its fiduciary duties under applicable Law, (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the x) Seller has given Buyer five (5) business day period referred Business Days' prior notice of the receipt of such Acquisition Proposal and Seller's board of directors has considered in good faith and consistent with its fiduciary duties any proposed changes to this Agreement (if any) proposed by Buyer, (y) after taking into account any such proposed changes by Buyer, such Acquisition Proposal remains a Superior Proposal, and (z) Seller has fully and completely complied with its obligations under this Section 5.22, Sections 5.2 and the first sentence of Section 5.23(a) hereof; provided that nothing contained in this Section 7.02 5.22(b) shall be reduced permit Seller's board of directors to three (3) business days following withdraw the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions proposal of this Agreement as would enable and the CBTC Board Acquisition to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach shareholders of the fiduciary duties of the members of the CBTC Board under applicable lawSeller.
Appears in 3 contracts
Samples: Purchase Agreement (Royal Bank of Canada), Purchase Agreement (Hipp W Hayne), Purchase Agreement (Liberty Corp)
Shareholder Approval. CBTC agrees (a) The Company Board has adopted resolutions recommending to the Company’s shareholders approval of this Agreement, the Merger and any other matters required to be approved or adopted in order to effect the Merger and the other transactions contemplated hereby.
(b) The Company Board will submit to its shareholders this Agreement, the Merger and any other matters required to be approved or adopted by such shareholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, the Company will take, in accordance with applicable law and the CBTC Articles and the CBTC Bylawsits Constituent Documents, all action necessary to convene an appropriate a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Company Meeting”), ) as promptly as practicable after to consider and vote upon approval of this Agreement, the Registration Statement is declared effectiveMerger and any such other matters. The CBTC Company and the Company Board shall recommend will use its reasonable best efforts to obtain from its shareholders a vote approving this Agreement, the Merger and any such other matters, including by recommending that its shareholders vote in favor of this Agreement, the Merger and any such other matters. However, if the Company Board, after consultation with (and based on the advice of) counsel, determines in good faith that, because of the receipt of an Acquisition Proposal that the CBTC shareholders approve and adopt the Company Board concludes in good faith constitutes a Superior Proposal, it would result in a violation of its fiduciary duties under applicable law to continue to recommend this Agreement and the transactions contemplated herebyMerger, then, in submitting this Agreement and the Merger to the Company Meeting, the Company Board may submit such items without recommendation (although the resolutions adopting such items prior to the date hereof, described in Section 6.2(a), may not be rescinded or amended), in which event the Company Board may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that the CBTC Company Board may fail not take any actions under this sentence until after giving Parent at least 10 business days to make respond to such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation Acquisition Proposal (an “Adverse Recommendation Change”), if the CBTC Board has, and after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach giving Parent notice of the fiduciary duties of third party in the members of Acquisition Proposal and the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any latest material terms and conditions of any applicable Superior Proposal (the Acquisition Proposal) and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that then taking into account any amendment or modification to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawproposed by Company.
Appears in 3 contracts
Samples: Merger Agreement (Cullen Frost Bankers Inc), Merger Agreement (Summit Bancshares Inc /Tx/), Merger Agreement (Cullen Frost Bankers Inc)
Shareholder Approval. CBTC agrees to Following the date that the Registration Statement is declared effective by the SEC, Sunshine shall take, in accordance with applicable law Law and the CBTC Articles articles of incorporation and the CBTC Bylawsbylaws of Sunshine, all action necessary to convene an appropriate a special meeting of its shareholders as promptly as practicable to consider and vote upon the approval of this Agreement and the transactions contemplated hereby (including the Merger) and any other matters required to be approved by CBTCSunshine’s shareholders in order to permit consummation of the Merger and the transactions contemplated hereby (including any adjournment or postponement thereof, the “Sunshine Meeting”) and shall take all lawful action to solicit such approval by such shareholders. Sunshine shall use its commercially reasonable efforts to obtain the Requisite Sunshine Shareholder Approval to consummate the Merger and the other transactions contemplated hereby, and shall ensure that the Sunshine Meeting is called, noticed, convened, held and conducted, and that all proxies solicited by Sunshine in connection with the Sunshine Meeting are solicited in compliance with the MGCL, the articles of incorporation and bylaws of Sunshine, and all other applicable legal requirements. Except with the prior approval of CenterState, other than the items noted above, no other matters shall be submitted for the approval of Sunshine shareholders at the Sunshine Meeting. Except to the extent provided otherwise in Section 5.09, the board of directors of Sunshine shall at all times prior to and during the Sunshine Meeting recommend approval of this Agreement by the shareholders of Sunshine and the transactions contemplated hereby (including the Merger) and any other matters required to be approved by Sunshine’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that hereby (the CBTC Board may fail to make such recommendation, or change“Sunshine Recommendation”) and shall not withhold, withdraw, qualify or amend, modify, change or publicly propose to change, withdraw, qualify or modify, such recommendation in a manner that is adverse in any respect to United, the interests of CenterState or take any other action or make any other public statement inconsistent with such recommendation (an “Adverse Recommendation Change”)and the Proxy Statement-Prospectus shall include the Sunshine Recommendation. In the event that there is present at such meeting, if in person or by proxy, sufficient favorable voting power to secure the CBTC Board hasRequisite Sunshine Shareholder Approval, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered Sunshine will not adjourn or postpone the advice of its outside legal counsel, determined Sunshine Meeting unless Sunshine is advised by counsel that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute result in a breach of the fiduciary duties of the members board of directors of Sunshine. Sunshine shall keep CenterState updated with respect to the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, proxy solicitation results in connection with the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if Sunshine Meeting as reasonably requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawCenterState.
Appears in 3 contracts
Samples: Merger Agreement (Sunshine Bancorp, Inc.), Merger Agreement (CenterState Banks, Inc.), Merger Agreement (CenterState Banks, Inc.)
Shareholder Approval. CBTC agrees to take, in accordance In connection with applicable law and the CBTC Articles and Company’s solicitation of the CBTC Bylaws, all action necessary to convene an appropriate meeting of approval by its shareholders of the transactions contemplated by the FSA Purchase Agreement, the Company will include a proposal (the “Proposal”) to consider obtain the approvals necessary under the rules of the NYSE to permit the issuance of the FSA Subsequent Shares and vote upon any Reset Shares or Pre-Emptive Shares related thereto or issuable hereunder (the “FSA Shareholder Approval”). The Company represents and warrants to the Investor that the Board of Directors has, at a duly convened meeting, unanimously determined (with one director abstaining) that the transactions contemplated hereby are fair to and in the best interests of the shareholders of the Company (other than the Investor), approved this Amendment and determined to recommend to the Company’s shareholders that such shareholders approve the actions referenced above (such actions, collectively, the “Board Recommendation”). The Company will include the Proposal in the proxy statement related to the shareholders’ meeting at which the approval of this the transactions contemplated by the FSA Purchase Agreement will be considered (and the Investor will reasonably cooperate with the Company in connection therewith) and will use reasonable best efforts to solicit proxies for such shareholder approval. The Company will provide the Investor with drafts of the proxy statement and any amendments or supplements thereto prior to their filing with the Commission and a reasonable opportunity to comment thereon. The Company will notify the Investor promptly of the receipt of any comments from the Commission or its staff and of any request by the Commission or its staff for amendments or supplements to such proxy statement or for additional information, in each case to the extent related to the Investment Agreement or this Amendment or the transactions contemplated thereby, and will supply the Investor with copies of all correspondence between the Company or any of its representatives, on the one hand, and the Commission or its staff, on the other matters hand, with respect to such proxy statement, to the extent related to the Investment Agreement or this Amendment or the transactions contemplated thereby. If at any time prior to such shareholders’ meeting there shall occur any event that is required to be approved by CBTC’s shareholders for consummation of set forth in an amendment or supplement to the Merger (including any adjournment or postponementproxy statement, the “CBTC Meeting”), Company will as promptly as practicable after the Registration Statement is declared effectiveprepare and mail to its shareholders such an amendment or supplement. The CBTC Board Company agrees promptly to correct any information in the proxy statement if and to the extent that such information shall recommend that the CBTC shareholders approve and adopt the Agreement have become false or misleading in any material respect, and the transactions contemplated hereby; provided that Company will as promptly as practicable prepare and mail to its shareholders an amendment or supplement to correct such information to the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if extent required by applicable laws and regulations. The Company will provide the CBTC Board has, after having consulted Investor with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach drafts of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) proxy statement and any amendments or supplements thereto prior to making an Adverse Recommendation Change, the CBTC Board shall mailing and will provide written notice to United (Investor a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments comment thereon. The Board Recommendation will be included in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any proxy statement filed in connection with obtaining such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawshareholder approval.
Appears in 3 contracts
Samples: Investment Agreement, Investment Agreement (Wl Ross & Co LLC), Investment Agreement (Assured Guaranty LTD)
Shareholder Approval. CBTC agrees to take(a) As soon as reasonably practicable following the date hereof, CFC shall take all action necessary in accordance with applicable law the Securities Exchange Act of 1934 (the Exchange Act ), the laws of the Commonwealth of Pennsylvania and its Articles of Incorporation and Bylaws to call and give notice of a meeting (the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting "Meeting") of its shareholders to consider and vote upon the approval of those items contemplated under this Agreement which require Shareholder Approval (the Sale of Assets ) and for such other purposes as may be necessary or desirable. The Board of Directors of CFC has unanimously determined that the Sale of Assets is advisable and in the best interests of the shareholders of CFC and, subject to their fiduciary duties as advised by counsel, shall recommend without qualification of any nature that CFC s shareholders vote to approve the Sale of Assets and any other matters required to be approved submitted to CFC s shareholders in connection therewith. The Board of Directors of CFC shall use commercially reasonable efforts to solicit and secure from shareholders of CFC such approval, subject to their fiduciary duties as advised by CBTC’s shareholders for consummation counsel, which efforts shall include causing CFC to solicit shareholder proxies therefor and advising LOTS promptly upon its request from time to time as to the status of the Merger shareholder vote then tabulated.
(including b) CFC shall prepare and file with the SEC under the Exchange Act and the rules and regulations promulgated by the SEC thereunder within 30 days following the date hereof, a preliminary draft of the Proxy Statement. LOTS shall cooperate with CFC in the preparation and filing of the Proxy Statement and any adjournment amendments and supplements thereto. CFC will use commercially reasonable efforts to have any review of the Proxy Statement conducted by the SEC promptly. As soon as reasonably practicable following completion of any review by, or postponementin the absence of such review, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions termination of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such casewaiting period of, the five (5) business day period referred SEC, CFC shall cause to in this Section 7.02 shall be reduced mailed a definitive Proxy Statement to three (3) business days following its shareholders entitled to vote on the delivery Sale of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and Assets.
(c) In the CBTC Boardevent Shareholder Approval is not received for any reason, following such five the Parties shall agree to the transfer of (5i) business day periodthe New Credit Business in accordance with the provisions set forth in Article II hereof, determines (ii) the Fee Income Business in good faithaccordance with the provisions set forth in Article III hereof, after consultation and (iii) the Administrative Services and personnel in accordance with its financial advisors and outside counselthe provisions set forth in Article IV hereof, that the failure which transfers are expected to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.occur on January 1,
Appears in 3 contracts
Samples: Asset Purchase Agreement (Consumers Financial Corp), Asset Purchase Agreement (Consumers Financial Corp), Asset Purchase Agreement (Consumers Financial Corp)
Shareholder Approval. CBTC agrees (a) GSB shall submit to take, in accordance with applicable law the holders of GSB Common Stock and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of GSB Series A Preferred Stock this Agreement and any other matters required to be approved by CBTCits shareholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, GSB shall take, in accordance with applicable Law and its articles of incorporation and bylaws, all action necessary to call, give notice of, convene, and hold GSB’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), Shareholders’ Meeting as promptly as reasonably practicable after for the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve purpose of considering and adopt the voting on approval of this Agreement and the transactions contemplated hereby; provided for in this Agreement. GSB’s board of directors shall recommend that its shareholders approve this Agreement in accordance with the CBTC Board may fail S.C. Code and shall include such recommendation in the Proxy Statement/Prospectus delivered to make such recommendationshareholders of GSB, or changeexcept to the extent GSB’s board of directors has made an Adverse Recommendation Change (as defined below) in accordance with the terms of this Agreement. GSB shall solicit and use its reasonable efforts to obtain the Requisite GSB Shareholder Approval.
(b) Neither GSB’s board of directors nor any committee thereof shall, except as expressly permitted by this Section 7.1, (i) withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedBuyer, the GSB Recommendation, or (ii) approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal (each, an “Adverse Recommendation Change”). Notwithstanding the foregoing, if prior to the CBTC Board hasreceipt of the Requisite GSB Shareholder Approval, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice GSB’s board of its outside legal counsel, determined that the failure to directors may make an Adverse Recommendation Change would be reasonably likely to constitute if and only if:
(A) GSB’s board of directors determines in good faith, after consultation with the GSB Financial Advisor (or such other financial advisor as GSB may use) and outside counsel, that it has received an Acquisition Proposal (that did not result from a breach of the Section 7.3) that is a Superior Proposal;
(B) GSB’s board of directors determines in good faith, after consultation with GSB’s outside counsel, that a failure to make such Adverse Recommendation Change would be inconsistent with GSB’s board of directors’ fiduciary duties of the members of the CBTC Board to GSB and its shareholders under applicable law; provided that: Law;
(aC) prior to making an Adverse Recommendation Change, the CBTC Board shall provide GSB’s board of directors provides written notice to United (a “Notice of Recommendation Change”) to Buyer of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the fifth third (5th3rd) business day following delivery of such notice, which notice shall specify any the material terms and conditions of any applicable the Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), ) and identify the Person or Group making such Superior Proposal, if applicable Proposal (it being understood that any amendment to any material term of such Superior Acquisition Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) three business day period referred to in this Section 7.02 clause (C) and in clauses (D) and (E) shall be reduced to three two (32) business days following the delivery giving of such new Notice of Recommendation Change); ;
(bD) after providing such Notice of Recommendation Change, CBTC GSB shall negotiate in good faith with United Buyer (if requested by UnitedBuyer) and provide United Buyer reasonable opportunity during the subsequent five three (53) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board GSB’s board of directors to proceed without an Adverse Recommendation Change (it being understood provided, however, that United Buyer shall not be required to propose any such adjustments); and and
(cE) the CBTC BoardGSB’s board of directors, following such five three (53) business day period, again determines in good faith, after consultation with its financial advisors and outside counsel, that the such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to constitute a breach of the inconsistent with their fiduciary duties of the members of the CBTC Board to GSB and its shareholders under applicable lawLaw.
Appears in 2 contracts
Samples: Merger Agreement (Grandsouth Bancorporation), Merger Agreement (First Bancorp /Nc/)
Shareholder Approval. CBTC agrees (1) The Borrower shall use its best efforts to takeobtain as soon as possible but in no event later than 90 days following the date of the Loan Agreement or 120 days in the event the proxy materials shall be reviewed by the Commission, shareholder approval of the issuance of the Underlying Shares (the "SHAREHOLDER PROPOSAL"), which approval shall meet the requirements of Nasdaq's Rule 4350(i) of Nasdaq set forth in accordance the NASD Manual (the "SHAREHOLDER APPROVAL DATE").
(2) As soon as practicable following the date of the Loan Agreement, but in no event more than 30 days following the date of the Loan Agreement, the Borrower shall prepare and file with applicable law and the CBTC Articles and Commission proxy materials calling a special meeting (the CBTC Bylaws, all action necessary to convene an appropriate meeting "SPECIAL MEETING") of its shareholders to consider and vote upon the seeking approval of this Agreement the Shareholder Proposal. The Borrower shall use its reasonable best efforts to cause such proxy materials to reach the "no further comment" stage as soon as possible (the "CLEARANCE DATE") and to hold the Special Meeting as soon as possible following the Clearance Date, but in no event later than 45 days following the Clearance Date.
(3) The Board of Directors shall recommend approval thereof by the Borrower's shareholders. The Borrower shall mail and distribute its proxy materials for the Special Meeting to its shareholders at least 30 days prior to the date of the Special Meeting and shall actively solicit proxies to vote for the Shareholder Proposal. The Borrower shall provide the Lenders an opportunity to review and comment on such proxy materials by providing (which may be by e-mail) copies of such proxy materials and any other matters required revised preliminary proxy materials to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to Lenders at least three (3) business days following prior to their filing with the delivery Commission. The Borrower shall provide the Lenders (which may be by e-mail) copies of all correspondence from or to the Commission or its staff concerning the proxy materials for the Special Meeting promptly after the same is sent or received by the Borrower and summaries of any comments of the Commission's staff which the Borrower receives orally promptly after receiving such new Notice oral comments. The Borrower shall (i) furnish to the Lenders and their counsel (which may be by e-mail) a copy of Recommendation Change); its definitive proxy materials for the Special Meeting and any amendments or supplements thereto promptly after the same are first used, mailed to shareholders or filed with the Commission, (bii) after providing inform the Lenders of the progress of solicitation of proxies for such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); meeting and (ciii) inform the CBTC BoardLenders of any adjournment of the Special Meeting and shall report the result of the vote of shareholders on the Shareholder Proposal at the conclusion of the Special Meeting.
(4) If for any reason the Shareholder Proposal is not approved at the Special Meeting, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to Borrower will take such action would be additional acts or actions as are necessary to hold an additional Special Meeting to consider the Shareholder Proposal and in conjunction therewith shall hire a nationally recognized proxy solicitation firm, selected by the Lenders which is reasonably likely satisfactory to constitute a breach the Borrower, to assist it in obtaining the necessary shareholder votes to approve the Shareholder Proposal. The Borrower shall bear all costs and expenses of the fiduciary duties preparation and filing of any and all proxy materials and Special Meetings, including but not limited to the costs and expenses of the members of the CBTC Board under applicable lawproxy solicitation firm if needed.
Appears in 2 contracts
Samples: Securities Agreement (Zoltek Companies Inc), Securities Agreement (Zoltek Companies Inc)
Shareholder Approval. CBTC agrees (a) The Board of Directors of Company has resolved to take, in accordance with applicable law recommend to Company’s shareholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. Company shall duly take, in accordance with applicable law and the Merger (including any adjournment or postponementCompany Certificate and Company Bylaws, the “CBTC Meeting”)all action necessary to call, give notice of, convene and hold a meeting of its shareholders, as promptly as reasonably practicable after the Registration Statement Form S-4 is declared effectiveeffective under the Securities Act by the SEC, for the purpose of obtaining the Company Shareholder Approval (the “Company Shareholder Meeting”). The CBTC Board shall recommend of Directors of Company will use all reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. However, if the Board of Directors of Company, after consultation with (and taking account of the advice of) counsel, determines in good faith that, because of the receipt by Company of a Company Acquisition Proposal that the CBTC Board of Directors of Company concludes in good faith constitutes a Company Superior Proposal, it would be more likely than not to result in a violation of its fiduciary duties under applicable law to continue to recommend this Agreement, then in submitting this Agreement to Company’s shareholders, the Board of Directors of Company may submit this Agreement to its shareholders approve and adopt without recommendation (although the resolutions approving this Agreement and as of the transactions contemplated herebydate hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to its shareholders in the Company Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that Company may not take any actions under this sentence until after giving Purchaser at least three business days’ notice. Nothing contained in this Agreement shall be deemed to relieve Company of its obligation to submit this Agreement to its shareholders for a vote. Company shall not submit to the CBTC vote of its shareholders any Company Acquisition Proposal other than the Merger.
(b) The Board may fail of Directors of Purchaser has resolved (i) to make recommend to Purchaser’s shareholders that they approve the issuance of Purchaser Common Stock in connection with the Merger and (ii) that as of the Effective Time, the restrictions in Article VII of the charter of Purchaser will no longer be in the best interests of Purchaser and its shareholders, and that such recommendationrestrictions shall cease to be effective as of the Effective Time, or change, withdraw, qualify or modify, or publicly propose and will submit to change, withdraw, qualify or modifyits shareholders the proposed issuance of Purchaser Common Stock and any other matters required to be approved by its shareholders in order to carry out the intentions of this Agreement. Purchaser shall duly take, in accordance with applicable law and the governing organization documents of Purchaser, all action necessary to call, give notice of, convene and hold a manner that meeting of its shareholders, as promptly as reasonably practicable after the Form S-4 is adverse to Uniteddeclared effective under the Securities Act by the SEC, any such recommendation for the purpose of obtaining the Purchaser Shareholder Approval (an the “Adverse Recommendation ChangePurchaser Shareholder Meeting”). The Board of Directors of Purchaser will use all reasonable best efforts to obtain from its shareholders the Purchaser Shareholder Approval. However, if the CBTC Board hasof Directors of Purchaser, after having consulted consultation with its financial advisor with respect to financial matters (and having consulted with and considered taking account of the advice of) counsel, determines in good faith that it would be more likely than not to result in a violation of its outside legal counselfiduciary duties under applicable law to continue to recommend the issuance proposal, determined that then in submitting the failure issuance proposal to make an Adverse Recommendation Change would be reasonably likely Purchaser’s shareholders, the Board of Directors of Purchaser may submit this Agreement to constitute a breach its shareholders without recommendation (although the resolutions approving this Agreement as of the fiduciary duties date hereof may not be rescinded or amended), in which event the Board of Directors of Purchaser may communicate the members basis for its lack of a recommendation to its shareholders in the CBTC Board under applicable Purchaser Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that: (a) prior that Purchaser may not take any actions under this sentence until after giving Company at least three business days’ notice. Nothing contained in this Agreement shall be deemed to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) relieve Purchaser of its intent obligation to announce an Adverse Recommendation Change submit this Agreement to its shareholders to a vote.
(c) Company and Purchaser shall cooperate to schedule and convene the Company Shareholder Meeting and the Purchaser Shareholder Meeting on the fifth same date.
(5thd) business day following delivery If on the date of the Company Shareholder Meeting, Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the Company Shareholder Approval, Company shall adjourn the Company Shareholder Meeting until such noticedate as shall be mutually agreed upon by Company and Purchaser, which notice date shall specify any material terms and conditions not be less than 5 days nor more than 10 days after the date of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing)adjournment, and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment subject to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement shall continue to use all reasonable best efforts, together with its proxy solicitor, to assist in the solicitation of proxies from shareholders relating to the Company Shareholder Approval. Company shall only be required to adjourn or postpone the Company Shareholder Meeting one time pursuant to this Section 6.3(d).
(e) If on the date of the Purchaser Shareholder Meeting, Purchaser has not received proxies representing a sufficient number of shares of Purchaser Common Stock to obtain the Purchaser Shareholder Approval, Purchaser shall adjourn the Purchaser Shareholder Meeting until such date as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall be mutually agreed upon by Company and Purchaser, which date shall not be less than 5 days nor more than 10 days after the date of adjournment, and subject to the terms and conditions of this Agreement shall continue to use all reasonable best efforts, together with its proxy solicitor, to assist in the solicitation of proxies from shareholders relating to the Purchaser Shareholder Approval. Purchaser shall only be required to propose any such adjustmentsadjourn or postpone the Purchaser Shareholder Meeting one time pursuant to this Section 6.3(e); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Shareholder Approval. CBTC agrees The Board of Directors of Company has resolved to take, in accordance with applicable law recommend to Company’s shareholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company will take, in accordance with applicable Law and the Merger Company Articles and the Company Bylaws, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC Company Shareholders’ Meeting”), to be held as promptly as practicable after Purchaser has obtained the Registration SEC’s declaration of effectiveness of the Form S-4, to consider and vote upon approval of this Agreement. Company agrees that its obligations pursuant to this Section 6.3 shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Acquisition Proposal or Change in the Company Recommendation. Subject to the provisions of Section 6.7, Company shall, through its Board of Directors, recommend to its shareholders the approval and adoption of this Agreement (the “Company Recommendation”), and shall use its best efforts to obtain from its shareholders the requisite affirmative vote to approve this Agreement (the “Company Shareholder Approval”), including, if necessary, adjourning the Company Shareholders’ Meeting if there are insufficient votes to approve this Agreement to allow additional time to attain the Company Shareholder Approval. Notwithstanding any Change in the Company Recommendation, this Agreement shall be submitted to the shareholders of Company at the Company Shareholders’ Meeting for the purpose of obtaining the Company Shareholder Approval and nothing contained herein shall be deemed to relieve Company of such obligation so long as Purchaser has obtained the SEC’s declaration of effectiveness of the Form S-4; provided, however, that if the Board of Directors of Company shall have effected a Change in the Company Recommendation permitted hereunder, then the Board of Directors of Company shall submit this Agreement to Company’s shareholders without the recommendation of this Agreement (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to Company’s shareholders in the Proxy Statement is declared effectiveor an appropriate amendment or supplement thereto to the extent required by applicable Law; provided that, for the avoidance of doubt, Company may not take any action under this sentence unless it has complied with the provisions of Section 6.7. The CBTC In addition to the foregoing, except as provided in Section 6.7, neither Company nor its Board of Directors of Company shall recommend that to its shareholders or submit to the CBTC vote of its shareholders approve and adopt any Acquisition Proposal other than the Agreement and Merger. Except as set forth in Section 6.7, neither the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, of Directors of Company nor any committee thereof shall withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedPurchaser, the Company Recommendation or take any such recommendation action, or make any public statement, filing or release inconsistent with the Company Recommendation (an any of the foregoing being a “Adverse Recommendation ChangeChange in the Company Recommendation”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Emclaire Financial Corp), Merger Agreement (Emclaire Financial Corp)
Shareholder Approval. CBTC agrees (a) Upon the election of Acquiror, the Company shall take all steps necessary to takeeither (i) solicit written consents, in accordance with applicable law form and substance acceptable to Acquiror, from its Shareholders as promptly as practicable after the date of this Agreement for the purpose of consenting to the approval of this Agreement and the CBTC Articles Merger or (ii) duly call, give notice of, convene and the CBTC Bylaws, all action necessary to convene an appropriate hold a meeting of its shareholders to consider and vote Shareholders as promptly as practicable after the date of this Agreement for the purpose of voting upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Special Meeting”), as promptly as practicable after provided, however that if Acquiror initially elects to have the Registration Statement is declared effective. The CBTC Company seek approval by written consent pursuant to clause (i) above, Acquiror may change its election by providing notice to the Company and require the Company to call a Special Meeting pursuant to clause (ii) above.
(b) Management and the Board shall recommend that to the CBTC shareholders approve and adopt Shareholders approval of this Agreement, including the Agreement Merger, and the transactions contemplated hereby; provided that the CBTC Board may , together with any matters incident thereto, and shall not (i) fail to make such recommendation, or changemake, withdraw, modify or qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a any manner that is adverse to United, Acquiror such recommendation or (ii) take any other action or make any other public statement inconsistent with such recommendation (an collectively, a “Adverse Recommendation ChangeChange in Recommendation”), if in each case except as and to the CBTC Board hasextent expressly permitted by Section 7.8. The Company shall (A) use its best efforts to obtain the Requisite Shareholder Approval and (B) otherwise comply with all legal requirements applicable to soliciting the Requisite Shareholder Approval either by written consent or at the Special Meeting. The Company shall submit this Agreement and the Merger to the Shareholders for approval and adoption as provided by Nevada Law and the Company’s articles of incorporation and bylaws. Without limiting the generality of the foregoing, after having consulted unless this Agreement is terminated in accordance with its financial advisor with respect terms, the Company agrees to financial matters submit this Agreement and having consulted with the Merger to the Shareholders whether or not (1) a Change in Recommendation shall have occurred and considered (2) any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to the advice Company or any of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawadvisors.
Appears in 2 contracts
Samples: Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
Shareholder Approval. CBTC (a) First Mutual agrees to take, in accordance with applicable law and the CBTC First Mutual Articles and the CBTC First Mutual Bylaws, all action necessary to convene an appropriate as soon as reasonably practicable a special meeting of its shareholders stockholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCFirst Mutual’s shareholders stockholders for consummation of the Merger Transaction (including any adjournment or postponement, the “CBTC First Mutual Meeting”). Except with the prior approval of Washington Federal, as promptly as practicable after no other matters shall be submitted for the Registration Statement is declared effectiveapproval of the First Mutual stockholders at the First Mutual Meeting. The CBTC Subject to Section 6.02(b), the First Mutual Board shall at all times prior to and during such meeting recommend that such approval and shall take all reasonable lawful action to solicit such approval by its stockholders and shall not (x) withdraw, modify or qualify in any manner adverse to Washington Federal such recommendation or (y) take any other action or make any other public statement in connection with the CBTC shareholders approve First Mutual Meeting inconsistent with such recommendation (collectively, a “Change in Recommendation”), except as and adopt to the extent permitted by Section 6.02(b). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the stockholders of First Mutual at the First Mutual Meeting for the purpose of approving the Agreement and any other matters required to be approved by First Mutual’s stockholders for consummation of the transactions contemplated hereby; provided that Transaction. In addition to the CBTC foregoing, First Mutual shall not submit to the vote of its stockholders any Acquisition Proposal other than the Merger.
(b) Notwithstanding the foregoing, First Mutual and the First Mutual Board may fail shall be permitted to make such recommendationeffect a Change in Recommendation if and only to the extent that:
(i) First Mutual shall have complied in all material respects with Section 6.08;
(ii) the First Mutual Board, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the based on advice of its outside legal counsel, shall have determined in good faith that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute result in a breach violation of the its fiduciary duties of the members of the CBTC Board under applicable law; provided that: and
(aiii) if the First Mutual Board intends to effect a Change in Recommendation following an Acquisition Proposal, (A) the First Mutual Board shall have concluded in good faith, after giving effect to all of the adjustments which may be offered by Washington Federal pursuant to clause (C) below, that such Acquisition Proposal constitutes a Superior Proposal, (B) First Mutual shall notify Washington Federal, at least five Business Days in advance, of its intention to effect a Change in Recommendation in response to such Superior Proposal (including the identity of the party making such Acquisition Proposal) and furnish to Washington Federal a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and all other material documents, and (C) prior to making an Adverse Recommendation Changeeffecting such a Change in Recommendation, First Mutual shall, and shall cause its financial and legal advisors to, during the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day period following First Mutual’s delivery of such notice, which the notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three clause (3B) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Changeabove, CBTC shall negotiate with Washington Federal in good faith with United for a period of up to five Business Days (if requested by Unitedto the extent Washington Federal desires to negotiate) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood so that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely Acquisition Proposal ceases to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawSuperior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Washington Federal Inc), Merger Agreement (First Mutual Bancshares Inc)
Shareholder Approval. CBTC agrees The Company shall provide each shareholder entitled to takevote at a special or annual meeting of shareholders of the Company (the “Shareholder Meeting”), which meeting shall be held no later than August 15, 2011 (the “Shareholder Meeting Deadline”)), a proxy statement, substantially in a form which has been previously reviewed by each of the Buyers, soliciting each such shareholder’s affirmative vote at the Shareholder Meeting for approval of a resolution (the “Resolution”) making the Exchange Cap (as defined in the Notes and the Warrants) inapplicable with respect to issuances of Common Stock in excess thereof and approving any change of control and/or other matter requiring approval which results from the issuance of the Securities in connection with this Agreement in accordance with applicable law and the CBTC Articles rules and the CBTC Bylaws, all action necessary regulations of Principal Market (such affirmative approval being referred to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, herein as the “CBTC MeetingShareholder Approval”), as promptly as practicable after and the Registration Statement is declared effectiveCompany shall use its best efforts to solicit its shareholders’ approval of the Resolution (which efforts shall include, without limitation, the requirement to hire a reputable proxy solicitor) and to cause the board of directors of the Company to recommend to the shareholders that they approve the Resolution. The CBTC Board Company shall recommend that be obligated to seek to obtain the CBTC shareholders approve and adopt Shareholder Approval by the Agreement and Shareholder Meeting Deadline. If, despite the transactions contemplated hereby; provided that Company’s best efforts the CBTC Board may fail to make such recommendation, Shareholder Approval is not obtained on or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changethe Shareholder Meeting Deadline, the CBTC Board Company shall provide written notice cause an additional Shareholder Meeting to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to held every three (3) business days following months thereafter until such Shareholder Approval is obtained. Until Shareholder Approval is obtained, the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation ChangeCompany shall not, CBTC shall negotiate directly or indirectly, issue or sell, or, in good faith accordance with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach Section 2 of the fiduciary duties Warrants, be deemed to have issued or sold, any shares of Common Stock (other than Excluded Securities) for consideration per share (determined in accordance with Section 2 of the members Warrants) less than the Conversion Price at any time while any of the CBTC Board under applicable lawNotes or Warrants are outstanding without the prior written consent of each Buyer, which consent may be granted or withheld in each Buyer’s sole discretion.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Atrinsic, Inc.), Securities Purchase Agreement (Atrinsic, Inc.)
Shareholder Approval. CBTC agrees (a) HopFed shall submit this Agreement to take, its shareholders for approval and adoption at a meeting to be called and/or held in accordance with applicable law and the CBTC HopFed Articles and Bylaws (the CBTC Bylaws“HopFed Shareholders’ Meeting”) as soon as reasonably practicable after the date of this Agreement and the effectiveness of the S-4. The Board of Directors of HopFed shall recommend to HopFed’s shareholders that such shareholders approve and adopt this Agreement and the Merger contemplated hereby and will, all in the event of an actual shareholders’ meeting, solicit proxies voting in favor of this Agreement from HopFed’s shareholders. Additionally, each director of HopFed and Heritage Bank and certain shareholders of HopFed as set forth on Section 7.2(i) of the HopFed Disclosure Schedule, shall agree to vote or direct the vote of any shares of HopFed Common Stock he or she owns, beneficially or of record or has the power to vote (subject to any fiduciary duties of such individual), in favor of the Merger pursuant to the agreement attached hereto as Exhibit B.
(b) Except as set forth in this Section 5.1(b), neither the HopFed Board of Directors nor any committee thereof shall (i) withdraw, qualify, modify, amend, or fail to make, or propose publicly to withdraw, qualify, modify, or amend its recommendation that the shareholders of HopFed approve this Agreement (or fail to include such recommendation in the Prospectus/Proxy Statement), (ii) make any public statement or take any action necessary inconsistent with its recommendation that the shareholders of HopFed approve this Agreement, or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to convene an appropriate meeting approve or adopt, any Acquisition Proposal (any of its shareholders the actions described in (i), (ii) or (iii), a “Change of Recommendation”). Notwithstanding the foregoing, at any time prior to consider and vote upon the approval of this Agreement and any by the Requisite HopFed Vote:
(i) HopFed’s Board of Directors may make a Change of Recommendation if (A) other matters required to be approved by CBTC’s shareholders for consummation than in connection with or as a result of the Merger making of an Acquisition Proposal, a material development or change in circumstances that was not known or, with respect to material developments or changes in circumstances relating to HopFed and its Subsidiaries, reasonably foreseeable to HopFed’s Board of Directors on or before the date of this Agreement occurs or arises after the date of this Agreement, which material development or change in circumstances becomes known to HopFed’s Board of Directors prior to the approval of this Agreement by the Requisite HopFed Vote (including any adjournment such material development or postponementchange in circumstances being referred to as an “Intervening Event”) (it being understood that in no event shall the receipt, the “CBTC Meeting”existence, or terms of an Acquisition Proposal constitute an Intervening Event), as promptly as practicable (B) HopFed’s Board of Directors concludes in good faith (after consultation with its outside financial and legal advisors) that an Intervening Event has occurred and a failure to make a Change of Recommendations would cause it to violate its fiduciary duties under applicable law, (C) HopFed’s Board of Directors does not effect, or cause HopFed to effect, a Change of Recommendation at any time within three (3) business days, or such shorter period in the Registration Statement is declared effective. The CBTC Board shall recommend event that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided HopFed Shareholders’ Meeting is scheduled to occur in less than three (3) business days, after First Financial receives written notice from HopFed that the CBTC HopFed Board may fail of Directors has determined that an Intervening Event requires the HopFed Board of Directors to make such recommendationeffect, or changecause HopFed to effect, withdrawa Change of Recommendation and describing in reasonable detail the circumstances underlying such determination (provided, qualify or modifya new notice shall be required with respect to any material change in circumstances and a new notice period of three (3) business days, or publicly propose shorter period in the circumstances above, shall begin), and (D) during such applicable period, HopFed engages in good faith negotiations with First Financial (to change, withdraw, qualify or modify, the extent that First Financial desires to negotiate) to amend this Agreement in such a manner that is adverse obviates the need for the HopFed Board of Directors to Unitedeffect, or cause HopFed to effect, a Change of Recommendation; or
(ii) if, in response to the receipt of an Acquisition Proposal that did not arise or result from any such recommendation material breach of Section 5.6, the HopFed Board of Directors shall have determined in good faith (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted consultation with its outside financial advisor and legal advisors) that such Acquisition Proposal constitutes a Superior Proposal and that a failure to make a Change of Recommendation with respect to financial matters and having consulted with and considered the advice of such Superior Proposal would cause it to violate its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; , then the HopFed Board of Directors may, with respect to such Superior Proposal, (x) make a Change of Recommendation or (y) cause HopFed to terminate this Agreement pursuant to Section 8.1(g) in order to enter into a definitive agreement providing for such Superior Proposal if, in each case:
A. HopFed has provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United First Financial (a “Notice of Recommendation ChangeSuperior Proposal”) advising First Financial that the HopFed Board of its intent to announce an Adverse Recommendation Change on Directors has received a Superior Proposal promptly after the fifth HopFed Board of Directors determines it has received a Superior Proposal (5thand in any event within two (2) business day following delivery days), stating that the HopFed Board of such notice, which notice shall specify any material Directors intends to make a Change of Recommendation or terminate this Agreement pursuant to Section 8.1(g) and describing in reasonable detail the terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Changeand
B. First Financial does not, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to within three (3) business days following of receipt of the delivery of such new Notice of Recommendation ChangeSuperior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the HopFed Board of Directors determines in good faith (after consultation with its outside financial and legal advisors), to be at least as favorable to HopFed’s shareholders as such Superior Proposal; (b) after providing such provided, however, that, during the Notice of Recommendation ChangePeriod, CBTC HopFed shall negotiate in good faith with United First Financial (if requested by Unitedto the extent First Financial desires to negotiate) and provide United reasonable opportunity regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the subsequent five Notice Period shall require a new written notice of the material terms of such amended Superior Proposal from HopFed and an additional three (53) business day period Notice Period, including with respect to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board HopFed’s obligations to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines negotiate in good faith, after consultation faith with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawFirst Financial.
Appears in 2 contracts
Samples: Merger Agreement (Hopfed Bancorp Inc), Merger Agreement (First Financial Corp /In/)
Shareholder Approval. CBTC agrees The TRBI Board will submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval plan of merger contained in this Agreement and any other matters required to be approved or adopted by CBTC’s shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, TRBI will take, in accordance with applicable law, applicable NASDAQ National Market System rules, the Merger rules of any other relevant exchange and its Constituent Documents, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC TRBI Meeting”), as promptly as practicable practicable, to consider and vote upon approval of the plan of merger as well as any other such matters. Except as specifically provided in the second succeeding sentence below, the TRBI Board will use all reasonable best efforts to obtain from its shareholders a vote approving the plan of merger contained in this Agreement, including providing an unqualified recommendation that its shareholders vote in favor of the Merger. Unless the Agreement has previously been terminated pursuant to Article VIII, TRBI shall be obligated to hold the TRBI Meeting notwithstanding any Acquisition Proposal or other event or circumstance, and TRBI agrees that it will not submit any Acquisition Proposal to its shareholders for a vote. However, notwithstanding the foregoing or anything herein to the contrary, if the TRBI Board, after consultation with (and based on the Registration Statement is declared effective. The CBTC Board shall recommend advice of) counsel, determines in good faith that, because of the receipt by TRBI of an Acquisition Proposal that the CBTC TRBI Board concludes in good faith constitutes a Superior Proposal, it would more likely than not result in a violation of its fiduciary duties under applicable law to continue to recommend the plan of merger set forth in this Agreement, then, in submitting the plan of merger to the TRBI Meeting, the TRBI Board may submit the plan of merger to its shareholders approve and adopt without recommendation (although the resolutions adopting this Agreement and as of the transactions contemplated herebydate hereof may not be rescinded or amended), in which event the TRBI Board may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that the CBTC TRBI Board may fail not take any actions under this sentence until after giving BBVA at least 10 business days to make respond to such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Acquisition Proposal (and include a copy thereof with all accompanying documentationafter giving BBVA notice of the latest material terms, if conditions and identity of the third party in writing), the Acquisition Proposal) and identify the Person making such Superior Proposal, if applicable (it being understood that then taking into account any amendment or modification to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawproposed by BBVA.
Appears in 2 contracts
Samples: Merger Agreement (Texas Regional Bancshares Inc), Merger Agreement (Texas Regional Bancshares Inc)
Shareholder Approval. CBTC agrees (a) Banknorth shall duly take all lawful action to takecall, in accordance with applicable law give notice of, convene and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate hold a meeting of its shareholders as promptly as practicable following the date upon which the Registration Statement becomes effective (the “Banknorth Shareholders Meeting”) for the purpose of obtaining the Required Banknorth Vote and, subject to consider and vote upon Section 6.3(b), shall take all lawful action to solicit the approval of this Agreement with respect to the Migratory Merger by such shareholders. The Board of Directors of Banknorth shall recommend approval of this Agreement by the shareholders of Banknorth (the “Banknorth Recommendation”) and shall not (x) withdraw, modify or qualify in any manner adverse to TD such recommendation or (y) take any other matters required to be approved by CBTC’s shareholders for consummation of action or make any other public statement in connection with the Merger Banknorth Shareholders Meeting inconsistent with such recommendation (including any adjournment or postponementcollectively, the a “CBTC MeetingChange in Banknorth Recommendation”), except as promptly as practicable after and to the Registration Statement is declared effectiveextent expressly permitted by Section 6.3(b). The CBTC Board Notwithstanding any Change in Banknorth Recommendation, this Agreement shall recommend that be submitted to the CBTC shareholders approve and adopt of Banknorth at the Banknorth Shareholders Meeting for the purpose of approving this Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters the Migratory Merger and having consulted with and considered nothing contained in this Section 6.3 or Section 6.4 shall be deemed to relieve Banknorth of such obligation. In addition to the advice foregoing, Banknorth shall not submit to the vote of its shareholders any Acquisition Proposal other than the Mergers.
(b) Notwithstanding the foregoing, prior to obtaining the Required Banknorth Vote, Banknorth and its Board of Directors may effect a Change in Banknorth Recommendation if and only to the extent that:
(i) Banknorth has complied in all material respects with its obligations under Section 6.4,
(ii) its Board of Directors, after consultation with its outside legal counsel, determined determines in good faith that the failure to make an Adverse Recommendation Change take such action would be reasonably likely to constitute result in a breach violation of the its fiduciary duties of the members of the CBTC Board under applicable law; provided that: , and
(aiii) prior it (A) has received an unsolicited bona fide written Acquisition Proposal from a third party which its Board of Directors concludes in good faith constitutes a Superior Proposal (as defined below) after giving effect to making an Adverse Recommendation Changeall of the adjustments which may be offered by TD pursuant to clause (C) below, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”B) has notified TD, at least five Business Days in advance, of its intent intention to announce an Adverse Recommendation effect a Change on in Banknorth Recommendation, specifying the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable such Superior Proposal (and include furnishing to TD a copy thereof with all accompanying documentationof the relevant proposed transaction agreements, if in writing)such exist, and identify with the Person party making such Superior Proposal, if applicable Proposal and (it being understood that any amendment to any material term C) during the period of such Superior Proposal shall require a new Notice not less than five Business Days following Banknorth’s delivery of Recommendation Change, except that, in such case, the five (5) business day period notice referred to in this Section 7.02 shall be reduced clause (B) above and prior to three (3) business days following the delivery of effecting such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Changea Change in Banknorth Recommendation, CBTC shall negotiate has negotiated, and has used reasonable best efforts to cause its financial and legal advisors to negotiate, with TD in good faith with United (if requested by Unitedto the extent that TD desires to negotiate) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board so that such Acquisition Proposal ceases to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and constitute a Superior Proposal.
(c) As promptly as practicable after the CBTC Boardexecution of this Agreement, following such five (5) business day periodBanknorth, determines in good faithacting as the sole stockholder of Banknorth Delaware, after consultation with its financial advisors and outside counselshall, that the failure to take such action would be reasonably likely to constitute at a breach meeting of the fiduciary duties sole stockholder of Banknorth Delaware which meeting Banknorth shall cause Banknorth Delaware to hold, (i) adopt this Agreement in respect of the members Migratory Merger and the Acquisition Merger and (ii) irrevocably waive any right of appraisal with respect to the CBTC Board under applicable lawAcquisition Merger or the right to dissent from the Acquisition Merger that Banknorth may have.
Appears in 2 contracts
Samples: Merger Agreement (Banknorth Group Inc/Me), Merger Agreement (Toronto Dominion Bank)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, (a) The Company shall take all action necessary to duly call, give notice of, convene an appropriate meeting and hold the Shareholder Meeting as soon as reasonably practicable following the date hereof. In connection with the Shareholder Meeting, the Company shall as promptly as reasonably practicable (i) prepare the Proxy Statement and file the Proxy Statement with the SEC (which shall in no case be later than fifteen (15) Business Days following the date hereof), (ii) respond to any comments or requests for additional information received from the SEC with respect to such filing and promptly provide copies of its such comments or requests, and any other correspondence with the SEC, to the Purchaser, (iii) prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (iv) after confirmation from the SEC that it has no further comments on, or that it is not reviewing, the Proxy Statement, use commercially reasonable efforts to mail to the Company’s shareholders the Proxy Statement and all other customary proxy or other materials for meetings such as the Shareholder Meeting, (v) to consider the extent required by applicable Law, prepare, file and vote distribute to the Company’s shareholders any supplement or amendment to the Proxy Statement if any event shall occur which requires such action at any time prior to the Shareholder Meeting and (vi) otherwise use commercially reasonable efforts to comply with all applicable Law applicable to the Shareholder Meeting.
(b) The Purchaser shall cooperate with the Company in connection with the preparation of the Proxy Statement, including promptly furnishing the Company upon request with any and all information as may be required to be set forth in the Proxy Statement under applicable Law. The Company will provide the Purchaser a reasonable opportunity to review and comment upon the Proxy Statement and, if applicable, any amendments or supplements thereto, prior to filing the Proxy Statement (or such amendments or supplements, as applicable) with the SEC and prior to mailing the Proxy Statement to the Company’s shareholders and the Company shall reasonably consider in good faith all comments proposed by the Purchaser with respect to the Proxy Statement and, if applicable, any such amendments or supplements. The Company shall cause the information included in the Proxy Statement (and any amendment thereto) at the time of mailing of the Proxy Statement (or such amendment), and at the time of the Shareholder Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Except as contemplated in Section 4.10(d) below, the Company’s Board of Directors shall recommend adoption and approval of this Agreement and any other matters required to be approved by CBTCthe Company’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC MeetingCompany Recommendation”), as promptly as practicable after and include such Company Recommendation in the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement Proxy Statement, and the transactions contemplated hereby; provided that Company shall take reasonable lawful action to solicit such adoption and approval.
(d) Neither the CBTC Board may fail of Directors nor any committee thereof shall withhold, withdraw, qualify or modify (or publicly propose to make such recommendation, or changewithhold, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify), in a manner that is adverse to Unitedthe Purchaser, any such recommendation the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, or adopt, approve, recommend to propose to adopt, approve or recommend (publicly or otherwise), or fail to reject within five (5) Business Days of receipt, an Acquisition Proposal (an “Adverse Recommendation Change”); unless prior to the time the Shareholder Approval is obtained, if but not after, the CBTC Board has, of Directors determines in good faith (after having consulted consultation with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with their fiduciary duties under applicable Law, determined make an Adverse Recommendation Change, provided (i) the Company shall provide written notice to Purchaser (a “Notice of Adverse Recommendation Change”) advising Purchaser that the Board of Directors intends to make an Adverse Recommendation Change, specifying the material terms and conditions of any Acquisition Proposal and identifying the person making such Acquisition Proposal, and (ii) the Company shall, during the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Purchaser of such Notice of Adverse Recommendation Change (or, if delivered after 5:00 p.m. Eastern Time or any day other than a Business Day, beginning at 5:00 p.m. Eastern Time on the next Business Day) and ending five (5) Business Days later at 5:00 p.m. Eastern Time (the “Notice Period”) negotiate with Purchaser and its representatives in good faith (to the extent Purchaser desires to negotiate) any proposed modifications to the terms and conditions of this Agreement and/or the Transaction Documents so that the failure to make an Adverse Recommendation Change would no longer be reasonably likely to constitute a breach of inconsistent with the directors' fiduciary duties of the members of the CBTC Board under applicable lawLaw; provided that: (a) prior , in the event of any material revisions to making an Adverse Recommendation ChangeAcquisition Proposal, the CBTC Board Company shall provide deliver a new written notice to United Purchaser and comply again with the requirements of this Section 4.11(d)(ii) with respect to such new written notice; provided, further, that with respect to the new written notice to Purchaser, the Notice Period shall be deemed to be a three (a “Notice of Recommendation Change”3) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, Business-Day period rather than the five (5) business day Business-Day period referred first described above.
(e) Notwithstanding the foregoing or anything to in this Section 7.02 the contrary herein, the Company shall not be reduced obligated to three (3) business days following prepare or file the delivery Proxy Statement or any amendments thereto, nor to distribute the Proxy Statement or solicit votes from Company stockholders pursuant to the Proxy Statement, nor convene and hold the Stockholder Meeting, from and after the date of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an any Adverse Recommendation Change (it being understood that United shall not be required or any action taken pursuant to propose any such adjustmentsSection 5.1(g); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Solar Power, Inc.), Securities Purchase Agreement (ZBB Energy Corp)
Shareholder Approval. CBTC agrees As of the date of this Agreement, the Board of Directors of Company has adopted resolutions approving the Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary Company’s shareholders for their consideration. The Board of Directors of Company will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval plan of merger contained in this Agreement and any other matters required to be approved or adopted by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company will take, in accordance with applicable law and the Merger (including any adjournment or postponementCompany Articles and Company Bylaws, the “CBTC Meeting”)all action necessary to convene a meeting of its shareholders, as promptly as practicable practicable, to consider and vote upon approval of the plan of merger as well as any other such matters. The record date for any such meeting of Company shareholders shall be determined in prior consultation with and subject to the prior approval of Parent, and shall in any case be no fewer than 3 business days after the Registration Statement is declared effectiveShare Exchange Closing. The CBTC Board shall recommend that of Directors of Company will use all reasonable best efforts to obtain from its shareholders a vote approving and adopting the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, plan of merger contained in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”)this Agreement. However, if the CBTC Board hasof Directors of Company, after having consulted consultation with its financial advisor with respect to financial matters (and having consulted with and considered based on the advice of its outside legal of) counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faithfaith that, after consultation with its financial advisors and outside counselbecause of a conflict of interest or other special circumstances (it being agreed that such special circumstances will include, for purposes of this Agreement, the receipt by Company of an Acquisition Proposal that the failure Board of Directors of Company concludes in good faith constitutes a Superior Proposal), it would violate its fiduciary duties under applicable law to take such action would be reasonably likely continue to constitute a breach recommend the plan of merger set forth in this Agreement, then in submitting the plan of merger to Company’s shareholders, the Board of Directors of Company may submit the plan of merger to its shareholders without recommendation (although the resolutions adopting this Agreement as of the fiduciary duties date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that it may not take any actions under this sentence until after giving Parent at least five business days to respond to any such Acquisition Proposal or other circumstances giving rise to such particular proposed action (and after giving Parent notice of the members latest material terms, conditions and identity of the CBTC Board under applicable lawthird party in any such Acquisition Proposal or describe in reasonable detail such other circumstances) and then taking into account any amendment or modification to this Agreement proposed by Parent (it being agreed that paragraph six of the Confidentiality Agreement will not preclude such a response or proposal).
Appears in 2 contracts
Samples: Merger Agreement (Wachovia Corp New), Merger Agreement (Wachovia Corp New)
Shareholder Approval. CBTC agrees to (a) Following the execution of this Agreement, IALB shall take, in accordance with applicable law and the CBTC its Articles of Incorporation and the CBTC Bylaws, all action necessary to convene an appropriate a meeting of its shareholders as promptly as practicable (and in any event within forty-five (45) days following the time when the Registration Statement becomes effective, subject to extension with the consent of First Merchants, which shall not unreasonably be withheld, conditioned or delayed) to consider and vote upon the approval adoption of this Agreement and approval of the transactions contemplated hereby (including the Merger) and any other matter required to be approved by the shareholders of IALB in order to consummate the Merger and the transactions contemplated hereby (including any adjournment or postponement thereof, the “Shareholder Meeting”).
(b) Subject to Section 7.5 hereof, IALB shall cooperate with First Merchants in the preparation of an appropriate proxy statement and other proxy solicitation materials (the “Proxy Statement”) and use its reasonable best efforts to obtain the requisite vote of IALB’s shareholders to consummate the Merger and the other transactions contemplated hereby, and shall ensure that the Shareholder Meeting is called, noticed, convened, held and conducted, and that all proxies solicited by IALB in connection with the Shareholder Meeting are solicited in compliance with the Indiana Business Corporation Law, the Articles of Incorporation and Bylaws of IALB, and all other applicable legal requirements. IALB shall keep First Merchants updated with respect to the proxy solicitation results in connection with the Shareholder Meeting as reasonably requested by First Merchants.
(c) Subject to Section 7.5 hereof, IALB’s Board of Directors shall recommend that IALB’s shareholders vote to adopt this Agreement and approve the transactions contemplated hereby (including the Merger) and any other matters required to be approved by CBTCIALB’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (First Merchants Corp)
Shareholder Approval. CBTC agrees (1) The Company shall use its best efforts to takeobtain as soon as possible but in no event later than 90 days following the date of the Loan Agreement or 120 days in the event the proxy materials shall be reviewed by the Commission, shareholder approval of the issuance of the Underlying Shares (the "SHAREHOLDER PROPOSAL"), which approval shall meet the requirements of Nasdaq's Rule 4350(i) of Nasdaq set forth in accordance the NASD Manual (the "SHAREHOLDER APPROVAL DATE").
(2) As soon as practicable following the date of the Loan Agreement, but in no event more than 30 days following the date of the Loan Agreement, the Company shall prepare and file with applicable law and the CBTC Articles and Commission proxy materials calling a special meeting (the CBTC Bylaws, all action necessary to convene an appropriate meeting "SPECIAL MEETING") of its shareholders to consider and vote upon the seeking approval of this Agreement the Shareholder Proposal. The Company shall use its reasonable best efforts to cause such proxy materials to reach the "no further comment" stage as soon as possible (the "CLEARANCE DATE") and to hold the Special Meeting as soon as possible following the Clearance Date, but in no event later than 45 days following the Clearance Date.
(3) The Board of Directors shall recommend approval thereof by the Company's shareholders. The Company shall mail and distribute its proxy materials for the Special Meeting to its shareholders at least 30 days prior to the date of the Special Meeting and shall actively solicit proxies to vote for the Shareholder Proposal. The Company shall provide the Holders an opportunity to review and comment on such proxy materials by providing (which may be by e-mail) copies of such proxy materials and any other matters required revised preliminary proxy materials to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to Holders at least three (3) business days following prior to their filing with the delivery Commission. The Company shall provide the Holders (which may be by e-mail) copies of all correspondence from or to the Commission or its staff concerning the proxy materials for the Special Meeting promptly after the same is sent or received by the Company and summaries of any comments of the Commission's staff which the Company receives orally promptly after receiving such new Notice oral comments. The Company shall (i) furnish to the Holders and their counsel (which may be by e-mail) a copy of Recommendation Change); its definitive proxy materials for the Special Meeting and any amendments or supplements thereto promptly after the same are first used, mailed to shareholders or filed with the Commission, (bii) after providing inform the Holders of the progress of solicitation of proxies for such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); meeting and (ciii) inform the CBTC BoardHolders of any adjournment of the Special Meeting and shall report the result of the vote of shareholders on the Shareholder Proposal at the conclusion of the Special Meeting.
(4) If for any reason the Shareholder Proposal is not approved at the Special Meeting, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to Company will take such action would be additional acts or actions as are necessary to hold an additional Special Meeting to consider the Shareholder Proposal and in conjunction therewith shall hire a nationally recognized proxy solicitation firm, selected by the Holders which is reasonably likely satisfactory to constitute a breach the Company, to assist it in obtaining the necessary shareholder votes to approve the Shareholder Proposal. The Company shall bear all costs and expenses of the fiduciary duties preparation and filing of any and all proxy materials and Special Meetings, including but not limited to the costs and expenses of the members of the CBTC Board under applicable lawproxy solicitation firm if needed.
Appears in 2 contracts
Samples: Securities Agreement (Zoltek Companies Inc), Securities Agreement (Zoltek Companies Inc)
Shareholder Approval. CBTC agrees Notwithstanding anything to takethe contrary herein or in the Standby Agreement or any other agreement contemplated hereby or thereby, in accordance with applicable law the parties hereto acknowledge and agree that the CBTC Articles and obligation of Diversus hereunder to consummate the CBTC Bylawstransactions contemplated by this Agreement, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of Standby Agreement or any other agreement contemplated by this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of or the Merger Standby Agreement (including any adjournment or postponementsuch agreements, the “CBTC MeetingTransaction Agreements” and such transactions, the “Transactions”) shall be conditioned upon the receipt of the Shareholder Approval (as defined below). Diversus covenants to submit the applicable Transaction Agreements and the Transactions to its shareholders within ten (10) days of receipt of a copy of the “Litigation Termination” (defined below). If Diversus does not receive the Shareholder Approval prior to (i) if such matters are submitted to a vote of shareholders at a meeting thereof called for the purpose of seeking a vote on such matters, as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend final adjournment of such meeting, or (ii) if such matters are submitted to the shareholders for action by written consent in lieu of a meeting, the earlier of (x) the date, if any, on which Diversus receives written instruments dissenting from such matters such that the CBTC shareholders approve Shareholder Approval shall be incapable of being obtained or (y) the close of business on the 30th calendar day following the date on which Diversus first mails any consent solicitation statement or other similar document seeking shareholder action by written consent in lieu of a meeting. Notwithstanding anything to the contrary herein or in the Standby Agreement or any other agreement contemplated hereby or thereby, the parties hereto acknowledge and adopt agree that, solely in the Agreement and case that Shareholder Approval is not obtained for the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters herein and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.Standby Agreement
Appears in 2 contracts
Samples: Supplemental Agreement (Positive Physicians Holdings,inc.), Supplemental Agreement (Positive Physicians Holdings,inc.)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate (a) Target shall call a meeting of its shareholders to consider and vote upon for the approval purpose of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of obtaining the Merger Target Requisite Shareholder Approval (including any meeting that occurs after any adjournment or postponement, the “CBTC Target Shareholder Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in substantially the terms and conditions set forth in this Agreement, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable after the effectiveness of the Form S-4 under the Securities Act. The Target Board shall use its reasonable best efforts to obtain from its shareholders the Target Requisite Shareholder Approval, including by recommending that its shareholders vote in favor of this Agreement, on substantially the terms and conditions set forth in this Agreement, required to consummate the transactions contemplated by this Agreement. The Target Board has adopted resolutions approving the Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to Target’s shareholders for their consideration. Notwithstanding anything in this Agreement as would enable to the CBTC contrary, Target is not obligated to convene the Target Shareholder Meeting or submit this Agreement to its shareholders if the Target Board to proceed without shall have made an Adverse Recommendation Change (it being understood as defined herein) in accordance with Section 6.9.
(b) Each of Buyer and Target shall, and shall cause its respective Subsidiaries to, use their reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements that United shall not may be imposed on such Party or its Subsidiaries with respect to the Merger and, subject to the conditions set forth in Article VII, to consummate the transactions contemplated by this Agreement, and (ii) to obtain (and to cooperate with the other Party to obtain) any material consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to propose be obtained by Target or Buyer or any such adjustments); of their respective Subsidiaries in connection with the Merger and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawother transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Park Sterling Corp)
Shareholder Approval. CBTC (a) FNBB agrees to take, in accordance with applicable law and the CBTC FNBB Articles and the CBTC FNBB Bylaws, all action necessary to convene an appropriate as soon as reasonably practicable after the Registration Statement becomes effective, a special meeting of its shareholders to consider and vote upon the approval of this Agreement, including the Merger, and any other matters required to be approved by FNBB’s shareholders for consummation of the Transaction (including any adjournment or postponement, the “FNBB Meeting”). Except with the prior approval of TriCo, no other matters shall be submitted for the approval of the FNBB shareholders at the FNBB Meeting. Subject to Section 6.02(b), the FNBB Board shall at all times prior to and during such FNBB Meeting recommend such approval and shall take all reasonable lawful action to solicit such approval by its shareholders and shall not (x) withdraw, modify or qualify in any manner adverse to TriCo such recommendation or (y) take any other action or make any other public statement in connection with the FNBB Meeting inconsistent with such recommendation (collectively, a “Change in Recommendation”), except as and to the extent permitted by Section 6.02(b). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the shareholders of FNBB at the FNBB Meeting for the purpose of approving the Agreement and any other matters required to be approved by CBTCFNBB’s shareholders for consummation of the Merger Transaction. In addition to the foregoing, FNBB shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger. FNBB hereby acknowledges its obligation to submit this Agreement to its shareholders at the FNBB Meeting as provided in this Section 6.02(a).
(including any adjournment or postponementb) Notwithstanding the foregoing, FNBB and the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC FNBB Board shall recommend that be permitted to effect a Change in Recommendation if and only to the CBTC shareholders approve and adopt extent that:
(i) FNBB shall have complied in all material respects with Section 6.07;
(ii) the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board hasFNBB Board, after having consulted consulting with its outside counsel and financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counseladvisor, shall have determined in good faith that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute result in a breach of the its fiduciary duties of the members of the CBTC Board under applicable law; provided that: and
(aiii) prior if the FNBB Board intends to making effect a Change in Recommendation following receipt of an Adverse Recommendation ChangeAcquisition Proposal, (A) the CBTC FNBB Board shall provide written notice have concluded in good faith, after giving effect to United all of the adjustments which may be offered by TriCo pursuant to clause (C) below, that such Acquisition Proposal constitutes a “Notice of Recommendation Change”Superior Proposal, (B) FNBB shall notify TriCo, at least five (5) Business Days in advance, of its intent intention to announce an Adverse effect a Change in Recommendation Change on in response to such Superior Proposal (including the fifth (5thidentity of the party making such Acquisition Proposal) business day following delivery of such notice, which notice shall specify any and furnish to TriCo all the material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing)such proposal, and identify (C) prior to effecting such a Change in Recommendation, FNBB shall, and shall cause its financial and legal advisors to, during the Person making such Superior Proposalperiod following FNBB’s delivery of the notice referred to in clause (B) above, if applicable (it being understood that any amendment negotiate with TriCo in good faith for a period of up to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred Business Days (to in this Section 7.02 shall be reduced the extent TriCo desires to three (3negotiate) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board so that such Acquisition Proposal ceases to proceed without an Adverse Recommendation Change (it being constitute a Superior Proposal. It is understood that United and agreed that any amendment or modification to the financial or other material terms of the Acquisition Proposal giving rise to the FNBB’s notice of a Superior Proposal shall not be required constitute a new Acquisition Proposal giving rise to propose any such adjustments); a new obligation to provide notice and (c) the CBTC Board, following such a new five (5) business day periodBusiness Day response period for TriCo, determines consequently extending the periods referenced in good faithSections 6.02(b)(iii) above.
(c) TriCo agrees to take, in accordance with applicable law and the TriCo Articles and TriCo Bylaws, all action necessary to convene as soon as reasonably practicable after consultation with the Registration Statement becomes effective, a meeting of its financial advisors shareholders to consider and outside counselvote upon the approval of this Agreement, that the failure to take such action would be reasonably likely to constitute a breach Merger and the issuance of the fiduciary duties TriCo Common Stock in the Merger and any other matters required to be approved by TriCo’s shareholders for consummation of the members Transaction (including any adjournment or postponement, the “TriCo Meeting”). The TriCo Board shall at all times prior to and during the TriCo Meeting recommend approval of this Agreement, the Merger and the issuance of the CBTC Board under applicable lawTriCo Common Stock in the Merger and any other matters required to be approved by TriCo’s shareholders for consummation of the Transaction contemplated hereby and shall take all reasonable lawful action to solicit such approval by its shareholders.
(d) FNBB and TriCo shall cooperate to schedule and convene the FNBB Meeting and the TriCo Meeting on the same date.
Appears in 2 contracts
Samples: Merger Agreement (FNB Bancorp/Ca/), Merger Agreement (Trico Bancshares /)
Shareholder Approval. CBTC agrees (a) ASBB shall submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCshareholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, ASBB shall take, in accordance with applicable Law and its articles of incorporation and bylaws, all action necessary to call, give notice of, convene, and hold ASBB’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), Shareholders’ Meeting as promptly as reasonably practicable after for the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve purpose of considering and adopt the voting on approval and adoption of this Agreement and the transactions contemplated hereby; provided for in this Agreement. ASBB’s board of directors shall recommend that its shareholders approve this Agreement in accordance with the CBTC Board may fail NCBCA and shall include such recommendation in the Proxy Statement/Prospectus delivered to make such recommendationshareholders of ASBB, or changeexcept to the extent ASBB’s board of directors has made an Adverse Recommendation Change (as defined below) in accordance with the terms of this Agreement. ASBB shall solicit and use its reasonable efforts to obtain the Requisite ASBB Shareholder Approval.
(b) Neither ASBB’s board of directors nor any committee thereof shall, except as expressly permitted by this Section 7.1, (i) withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedBuyer, the ASBB Recommendation, or (ii) approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal (each, an “Adverse Recommendation Change”). Notwithstanding the foregoing, if prior to the CBTC Board hasreceipt of the Requisite ASBB Shareholder Approval, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice ASBB’s board of its outside legal counsel, determined that the failure to directors may make an Adverse Recommendation Change would be reasonably likely to constitute if and only if:
(A) ASBB’s board of directors determines in good faith, after consultation with the ASBB Financial Advisor (or such other financial advisor as ASBB may use) and outside counsel, that it has received an Acquisition Proposal (that did not result from a breach of the Section 7.3) that is a Superior Proposal;
(B) ASBB’s board of directors determines in good faith, after consultation with ASBB’s outside counsel, that a failure to make such Adverse Recommendation Change would be inconsistent with ASBB’s board of directors’ fiduciary duties of the members of the CBTC Board to ASBB and its shareholders under applicable law; provided that: Law;
(aC) prior to making an Adverse Recommendation Change, the CBTC Board shall provide ASBB’s board of directors provides written notice to United (a “Notice of Recommendation Change”) to Buyer of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the fifth (5th) third business day following delivery of such notice, which notice shall specify any the material terms and conditions of any applicable the Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), ) and identify the Person or Group making such Superior Proposal, if applicable Proposal (it being understood that any amendment to any material term of such Superior Acquisition Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) three business day period referred to in this Section 7.02 clause (C) and in clauses (D) and (E) shall be reduced to three (3) two business days following the delivery giving of such new Notice of Recommendation Change); ;
(bD) after providing such Notice of Recommendation Change, CBTC ASBB shall negotiate in good faith with United Buyer (if requested by UnitedBuyer) and provide United Buyer reasonable opportunity during the subsequent five (5) three business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board ASBB’s board of directors to proceed without an Adverse Recommendation Change (it being understood provided, however, that United Buyer shall not be required to propose any such adjustments); and and
(cE) the CBTC BoardASBB’s board of directors, following such five (5) three business day period, again determines in good faith, after consultation with its financial advisors and outside counsel, that the such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to constitute a breach of the inconsistent with their fiduciary duties of the members of the CBTC Board to ASBB and its shareholders under applicable lawLaw.
Appears in 2 contracts
Samples: Merger Agreement (ASB Bancorp Inc), Merger Agreement (First Bancorp /Nc/)
Shareholder Approval. CBTC agrees (a) The Bank shall use its reasonable efforts to take, take all actions in accordance with applicable law and the CBTC Articles of Association and Bylaws of the CBTC Bylaws, all action Bank reasonably necessary to duly call, give notice of, convene an appropriate and hold a special meeting of its shareholders the holders of Bank Stock (the “Bank Shareholder Meeting”) to be held on the earliest practicable date determined in consultation with Parent to consider and vote upon approval of the approval Merger, this Agreement and the transactions contemplated by this Agreement.
(b) The Bank agrees to use its reasonable efforts to obtain the vote of the holders of the requisite percentage of the Bank Stock in favor of the Merger, this Agreement and the transactions contemplated hereby.
(c) The board of directors of the Bank has adopted resolutions recommending to the shareholders of the Bank the adoption of this Agreement and any the other matters required to be approved or adopted in order to consummate the transactions contemplated by CBTCthis Agreement, and the board of directors of the Bank shall recommend to the Bank’s shareholders for consummation the approval and adoption of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the this Agreement and the other matters required to be approved or adopted in order to consummate the transactions contemplated hereby; provided that by this Agreement. Notwithstanding the CBTC Board foregoing, the board of directors of the Bank may fail to make such recommendation, or change, withdraw, qualify or modify, condition or publicly propose refuse to change, withdraw, qualify recommend the adoption of this Agreement and the other matters required to be approved or modify, adopted in a manner that is adverse order to United, any such recommendation (an “Adverse Recommendation Change”), carry out the intentions of this Agreement if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice board of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach directors of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangeBank determines, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counseladvisors, that the failure to take such action would be reasonably likely to constitute a breach of the inconsistent with its fiduciary duties of the members of the CBTC Board obligations under applicable law. Notwithstanding the foregoing, this Agreement and such other matters shall be submitted to the shareholders of the Bank at a special meeting for the purpose of approving the Agreement and such other matters and nothing contained herein shall be deemed to relieve the Bank of such obligation, provided, however, that if the board of directors of the Bank shall have withdrawn, modified, conditioned or refused to recommend the adoption of this Agreement and such other matters in accordance with the terms of this Agreement, then in submitting this Agreement to the Bank’s shareholders, the board of directors of the Bank may submit this Agreement to the Bank’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended).
Appears in 2 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
Shareholder Approval. CBTC agrees The Board of Directors of Company has resolved to take, in accordance with applicable law recommend to Company’s shareholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company will take, in accordance with applicable Law and the Merger Company Certificate and Company Bylaws, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC Shareholders’ Meeting”), as promptly as practicable after Purchaser has obtained the Registration SEC’s declaration of effectiveness of the Form S-4, to consider and vote upon approval of this Agreement. Company agrees that its obligations pursuant to this Section 6.3 shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Acquisition Proposal or Change in the Company Recommendation. Subject to the provisions of Section 6.8, Company shall, through its Board of Directors, recommend to its shareholders the approval and adoption of this Agreement (the “Company Recommendation”), and shall use its best efforts to obtain from its shareholders the requisite affirmative vote approving this Agreement (the “Company Shareholder Approval”). Notwithstanding any Change in the Company Recommendation, this Agreement shall be submitted to the shareholders of Company at the Shareholders’ Meeting for the purpose of obtaining the Company Shareholder Approval and nothing contained herein shall be deemed to relieve Company of such obligation so long as Purchaser has obtained the SEC’s declaration of effectiveness of the Form S-4; provided, however, that if the Board of Directors of Company shall have effected a Change in the Company Recommendation permitted hereunder, then the Board of Directors of Company shall submit this Agreement to Company’s shareholders without the recommendation of the Agreement (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to the Company’s shareholders in the Proxy Statement is declared effectiveor an appropriate amendment or supplement thereto to the extent required by applicable Law; provided that, for the avoidance of doubt, Company may not take any action under this sentence unless it has complied with the provisions of Section 6.8. The CBTC In addition to the foregoing, neither Company nor its Board of Directors of Company shall recommend that to its shareholders or submit to the CBTC vote of its shareholders approve and adopt any Acquisition Proposal other than the Agreement and Merger. Except as set forth in Section 6.8, neither the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, of Directors of Company nor any committee thereof shall withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedPurchaser, the Company Recommendation or take any such recommendation action, or make any public statement, filing or release inconsistent with the Company Recommendation (an any of the foregoing being a “Adverse Recommendation ChangeChange in the Company Recommendation”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Camco Financial Corp), Merger Agreement (Huntington Bancshares Inc/Md)
Shareholder Approval. CBTC agrees Shelby County shall submit this Agreement and the Merger to take, its shareholders for approval at a meeting to be called and held in accordance with applicable law and the CBTC Articles of Incorporation and By-Laws of Shelby County on a date mutually acceptable to Shelby County and Blue River. Shelby County shall use its reasonable efforts to hold such meeting of shareholders no later than sixty (60) days following the date of this Agreement. In connection with such meeting of shareholders of Shelby County, (a) Shelby County shall deliver to its shareholders a proxy statement relating to the Merger ("Proxy Statement") which shall include a copy of this Agreement and all other information required to be provided to shareholders of Shelby County in accordance with applicable law; and (b) the Board of Directors of Shelby County shall recommend, by at least a majority vote, to Shelby County's shareholders that such shareholders approve this Agreement and the CBTC BylawsMerger and shall solicit proxies in favor of this Agreement from such shareholders (unless, all action necessary in the written opinion of counsel for Shelby County, the fiduciary duties of such Board might reasonably be found to convene an appropriate meeting prohibit such a recommendation, in which event the individual members of its shareholders the Board of Directors shall nevertheless remain personally obligated to consider vote in favor of this Agreement and vote upon the Merger pursuant to their personal undertakings set forth elsewhere in this Agreement). Immediately following the approval of this Agreement and any other matters required to be approved by CBTC’s the shareholders for consummation of the Merger (including any adjournment or postponementShelby County, the “CBTC Meeting”)Shelby County, as promptly as practicable after the Registration Statement is declared effective. The CBTC sole shareholder of SCSB, and the Board of Directors of SCSB shall recommend that each approve the CBTC shareholders approve Conversion and adopt the Agreement and Plan of Conversion. Shelby County shall use its reasonable efforts to cause Trident Financial Corporation ("Trident") to issue, no later than the transactions contemplated hereby; provided date of the Proxy Statement, Trident's written opinion ("Fairness Opinion") stating that the CBTC Board may fail Conversion Price is fair to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in the shareholders of Shelby County from a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice point of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board view. Shelby County shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include attach a copy thereof of Trident's fairness opinion to the proxy statement to be delivered to Shelby County's shareholders in connection with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term meeting of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to shareholders referenced in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law6.01.
Appears in 2 contracts
Samples: Merger Agreement (Blue River Bancshares Inc), Agreement of Affiliation and Merger (Shelby County Bancorp)
Shareholder Approval. CBTC (a) WFD agrees to take, in accordance with applicable law law, the Articles of Organization, as amended, and the CBTC Articles Amended and the CBTC BylawsRestated Bylaws of WFD, all action necessary to convene an appropriate a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCWFD’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC WFD Meeting”)) and, as promptly as practicable subject to Section 5.08, shall take all lawful action to solicit such approval by such shareholders. WFD agrees to use its best efforts to convene the WFD Meeting within thirty-five (35) days after the Registration Statement is declared effectiveinitial mailing of the Joint Proxy Statement/Prospectus to shareholders of WFD pursuant to Section 5.05, and in any event shall convene the WFD Meeting within forty-five (45) days after such mailing. Except for matters that would ordinarily be considered at WFD’s annual meeting of shareholders or with the prior approval of CBNK, no other matters shall be submitted for the approval of WFD shareholders at the WFD Meeting. The CBTC WFD Board shall at all times prior to and during the WFD Meeting recommend that adoption of this Agreement by the CBTC shareholders approve of WFD and adopt shall not withhold, withdraw, amend or modify such recommendation in any manner or take any other action or make any other public statement inconsistent with such recommendation.
(b) CBNK agrees to take, in accordance with applicable law, the Articles of Organization and the Amended and Restated Bylaws of CBNK, all action necessary to convene a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBNK’s shareholders in order to permit consummation of the transactions contemplated hereby; provided by this Agreement (including any adjournment or postponement, the “CBNK Meeting”) and, subject to Section 5.08, shall take all lawful action to solicit such approval by such shareholders. CBNK agrees to use its best efforts to convene the CBNK Meeting within thirty-five (35) days after the initial mailing of the Joint Proxy Statement/Prospectus to shareholders of CBNK pursuant to Section 5.05, and in any event shall convene the CBNK Meeting within forty-five (45) days after such mailing. Except for matters that would ordinarily be considered at CBNK’s annual meeting of shareholders or with the CBTC prior approval of WFD, no other matters shall be submitted for the approval of CBNK shareholders at the CBNK Meeting. The CBNK Board may fail shall at all times prior to and during the CBNK Meeting recommend adoption of this Agreement by the shareholders of CBNK (the “CBNK Recommendation”) and shall not withhold, withdraw, amend or modify such recommendation in any manner adverse to WFD or take any other action or make any other public statement inconsistent with such recommendation, or change, withdraw, qualify or modify, or publicly propose except as and to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United extent expressly permitted by Section 5.11 (a “Notice Change in Recommendation”). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the shareholders of Recommendation Change”) of its intent CBNK for their approval at the CBNK Meeting and nothing contained herein shall be deemed to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery relieve CBNK of such notice, which notice shall specify any material terms obligation (unless and conditions of any applicable Superior Proposal (and include a copy thereof until this agreement is terminated in accordance with all accompanying documentation, if in writingSection 7.01), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Westfield Financial Inc), Merger Agreement (Chicopee Bancorp, Inc.)
Shareholder Approval. CBTC agrees In addition, the Issuer shall use its reasonable best efforts to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate hold (a) one special meeting of its shareholders to consider and vote upon obtain the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), Authorized Share Increase Approval as promptly as practicable practical under the circumstances after the Registration Statement is declared effective. The CBTC Board shall recommend that Closing Date and prior to the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner date that is adverse to United, any such recommendation sixty (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a60) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); Closing Date and (b) a separate special meeting of shareholders (which may also be at the annual meeting of shareholders) to obtain the Nasdaq 20% Approval as promptly as reasonably practical under the circumstances after providing the Closing Date and prior to the date that is sixty (60) days following the Closing Date, in each case, with the recommendation of the Issuer’s Board of Directors that such Notice of Recommendation Changeproposals be approved, CBTC and the Issuer shall negotiate solicit proxies from its shareholders in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments connection therewith in the terms same manner as all other management proposals in such proxy statement and conditions all management-appointed proxyholders shall vote their proxies in favor of this Agreement as would enable such proposal. The Issuer shall use its reasonable best efforts to obtain such Shareholder Approval. If the CBTC Board Issuer does not obtain the Shareholder Approval at such special meetings, the Issuer shall use reasonable best efforts to proceed without an Adverse Recommendation Change hold a new special meeting within thirty (it being understood that United 30) days from the date of such previous special meeting to use its reasonable best efforts to obtain such Shareholder Approval. If the Issuer does not obtain the Shareholder Approval at the most recent special meeting, the Issuer shall not be required use reasonable best efforts to propose any seek such adjustments); and Shareholder Approval at each annual meeting thereafter (cstarting in 2024) until the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach earlier of the fiduciary duties date the Shareholder Approval is obtained, or the Notes are no longer outstanding. The Issuer shall file an amendment to its certificate of incorporation to reflect the Authorized Share Increase within ten (10) Business Days after the Authorized Share Increase Approval is obtained. FF Global Partners Investment LLC (formerly known as FF Top Holding LLC) hereby irrevocably agrees that it will take reasonable efforts to cause all shares over which it controls voting power to vote in favor of the members of Shareholder Approval (including the CBTC Board under applicable lawAuthorized Share Increase Approval).
Appears in 2 contracts
Samples: Amendment to Atw Notes and Warrants (Faraday Future Intelligent Electric Inc.), Securities Purchase Agreement (Faraday Future Intelligent Electric Inc.)
Shareholder Approval. CBTC agrees The Board of Directors of Company has resolved to take, in accordance with applicable law recommend to Company’s shareholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company will take, in accordance with applicable law and the Merger (including any adjournment or postponementCompany Articles and Company Bylaws, the “CBTC Meeting”)all action necessary to convene a meeting of its shareholders, as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve practicable, to consider and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions vote upon approval of this Agreement as would enable well as any other such matters. The Board of Directors of Company will use all reasonable best efforts to obtain from its shareholders a vote approving this Agreement. However, if the CBTC Board to proceed without an Adverse Recommendation Change of Directors of Company, after consultation with (it being understood that United shall not be required to propose any such adjustments); and (cbased on the advice of) the CBTC Board, following such five (5) business day periodoutside counsel, determines in good faithfaith that, after consultation with its financial advisors and outside counsel, because of the receipt by Company of an Acquisition Proposal that the failure Board of Directors of Company concludes in good faith constitutes a Superior Proposal, it would more likely than not result in a violation of its fiduciary duties under applicable law to take such action would be reasonably likely continue to constitute a breach recommend this Agreement, then in submitting this Agreement to Company’s shareholders, the Board of Directors of Company may submit this Agreement to its shareholders without recommendation (although the resolutions approving this Agreement as of the fiduciary duties date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that Company may not take any actions under this sentence until after giving Purchaser at least three business days to respond to any such Acquisition Proposal or other circumstances giving rise to such particular proposed action (and after giving Purchaser notice of the members latest material terms, conditions and identity of the CBTC Board under applicable lawthird party in any such Acquisition Proposal or describe in reasonable detail such other circumstances) and then taking into account any amendment or modification to this Agreement proposed by Purchaser. Nothing contained in this Agreement shall be deemed to relieve the Company of its obligation to submit this Agreement to its shareholders for a vote. The Company shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Marshall & Ilsley Corp), Merger Agreement (Bank of Montreal /Can/)
Shareholder Approval. CBTC agrees (a) Cornerstone shall submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Cornerstone shall take, in accordance with applicable Law and its articles of incorporation and bylaws, all action necessary to call, give notice of, convene, and hold the Merger (including any adjournment or postponement, the “CBTC Meeting”), Cornerstone Shareholders’ Meeting as promptly as practicable after for the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve purpose of considering and adopt the voting on approval and adoption of this Agreement and the transactions contemplated hereby; provided for in this Agreement. Cornerstone’s Board of Directors shall recommend that its shareholders approve this Agreement in accordance with the CBTC SCBCA (the “Cornerstone Recommendation”) and shall include such recommendation in the Proxy Statement/Prospectus mailed to shareholders of Cornerstone, except to the extent Cornerstone’s Board may fail of Directors has made an Adverse Recommendation Change (as defined below) in accordance with the terms of this Agreement. Subject to make such recommendationSections 7.1(b) and 7.3, or changeCornerstone shall solicit and use its reasonable efforts to obtain the Requisite Cornerstone Shareholder Vote.
(b) Neither Cornerstone’s Board of Directors nor any committee thereof shall, except as expressly permitted by this Section, (i) withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedParent, the Cornerstone Recommendation or (ii) approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal (each, an “Adverse Recommendation Change”). Notwithstanding the foregoing, if prior to prior to the CBTC Requisite Cornerstone Shareholder Vote, Cornerstone’s Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to Directors may make an Adverse Recommendation Change would be reasonably likely to constitute if and only if:
(i) Cornerstone’s Board of Directors determines in good faith, after consultation with the Cornerstone Financial Advisor and outside counsel, that it has received an Acquisition Proposal (that did not result from a breach of the Section 7.3) that constitutes or is likely to result in a Superior Proposal;
(ii) Cornerstone’s Board of Directors determines in good faith, after consultation with Cornerstone’s outside counsel, that a failure to accept such Superior Proposal would be inconsistent with its fiduciary duties of the members of the CBTC Board to Cornerstone and its shareholders under applicable law; provided that: Law;
(aiii) prior to making an Adverse Recommendation Change, the CBTC Cornerstone’s Board shall provide of Directors provides written notice to United (a “Notice of Recommendation Change”) to Parent of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any the material terms and conditions of any applicable the Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), ) and identify identifying the Person or Group making such Superior Proposal, if applicable Proposal (it being understood that any amendment to any material term of such Superior Acquisition Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 clause (iii) and in clauses (iv) and (v) shall be reduced to three (3) business days following the delivery giving of such new Notice of Recommendation Change); ;
(biv) after providing such Notice of Recommendation Change, CBTC Cornerstone shall negotiate in good faith with United Parent (if requested by UnitedParent) and provide United Parent reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board of Directors of Cornerstone to proceed without an Adverse Recommendation Change (it being understood provided, however, that United Parent shall not be required to propose any such adjustments); and and
(cv) the CBTC BoardCornerstone’s Board of Directors, following such five (5) business day period, again determines in good faith, after consultation with its financial advisors the Cornerstone Financial Advisor and outside counsel, that the such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to constitute a breach of the violate their fiduciary duties of the members of the CBTC Board to Cornerstone and its shareholders under applicable lawLaw. Notwithstanding any other provision of this Agreement, except to the extent prohibited by the SCBCA as determined by Cornerstone after consultation with Cornerstone’s outside counsel, Cornerstone shall submit this Agreement to its shareholders at Cornerstone’s Shareholders’ Meeting even if Cornerstone’s Board of Directors has made an Adverse Recommendation Change, in which case Cornerstone’s Board of Directors may communicate the Adverse Recommendation Change and the basis for it to the shareholders of Cornerstone in the Proxy Statement/Prospectus or any appropriate amendment or supplement thereto.
Appears in 2 contracts
Samples: Merger Agreement (First Community Corp /Sc/), Merger Agreement (First Community Corp /Sc/)
Shareholder Approval. CBTC agrees (a) CLBH shall submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCshareholders in order to carry out the intentions of this Agreement. In furtherance of that obligation, CLBH shall take, in accordance with applicable Law and its articles of incorporation and bylaws, all action necessary to call, give notice of, convene, and hold CLBH’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), Shareholders’ Meeting as promptly as reasonably practicable after for the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve purpose of considering and adopt the voting on approval and adoption of this Agreement and the transactions contemplated hereby; provided for in this Agreement. CLBH’s board of directors shall recommend that its shareholders approve this Agreement in accordance with the CBTC Board may fail NCBCA and shall include such recommendation in the proxy statement delivered to make such recommendationshareholders of CLBH, or changeexcept to the extent CLBH’s board of directors has made an Adverse Recommendation Change (as defined below) in accordance with the terms of this Agreement. CLBH shall solicit and use its reasonable efforts to obtain the Requisite CLBH Shareholder Approval.
(b) Neither CLBH’s board of directors nor any committee thereof shall, except as expressly permitted by this Section 7.1, (i) withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedFBNC, the CLBH Recommendation, or (ii) approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal (each, an “Adverse Recommendation Change”). Notwithstanding the foregoing, if prior to the CBTC Board hasreceipt of Requisite CLBH Shareholder Approval, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice CLBH’s board of its outside legal counsel, determined that the failure to directors may make an Adverse Recommendation Change would be reasonably likely to constitute if and only if:
(A) CLBH’s board of directors determines in good faith, after consultation with the CLBH Financial Advisor and outside counsel, that it has received an Acquisition Proposal (that did not result from a breach of the Section 7.3) that is a Superior Proposal;
(B) CLBH’s board of directors determines in good faith, after consultation with CLBH’s outside counsel, that a failure to make such Adverse Recommendation Change would be inconsistent with CLBH’s board of directors fiduciary duties of the members of the CBTC Board to CLBH and its shareholders under applicable law; provided that: Law;
(aC) prior to making an Adverse Recommendation Change, the CBTC Board shall provide CLBH’s board of directors provides written notice to United (a “Notice of Recommendation Change”) to FBNC of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the fifth (5th) third business day following delivery of such notice, which notice shall specify any the material terms and conditions of any applicable the Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), ) and identify the Person or Group making such Superior Proposal, if applicable Proposal (it being understood that any amendment to any material term of such Superior Acquisition Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) three business day period referred to in this Section 7.02 clause (C) and in clauses (D) and (E) shall be reduced to three two (32) business days following the delivery giving of such new Notice of Recommendation Change); ;
(bD) after providing such Notice of Recommendation Change, CBTC CLBH shall negotiate in good faith with United FBNC (if requested by UnitedFBNC) and provide United FBNC reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board CLBH board of directors to proceed without an Adverse Recommendation Change (it being understood provided, however, that United the FBNC shall not be required to propose any such adjustments); and and
(cE) the CBTC BoardCLBH’s board of directors, following such five (5) three business day period, again determines in good faith, after consultation with its financial advisors and outside counsel, that the such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to constitute a breach of the inconsistent with their fiduciary duties of the members of the CBTC Board to CLBH and its shareholders under applicable lawLaw.
Appears in 2 contracts
Samples: Merger Agreement (Carolina Bank Holdings Inc), Merger Agreement (First Bancorp /Nc/)
Shareholder Approval. CBTC (a) BHB agrees to take, in accordance with applicable law law, the Articles of Incorporation, as amended, and the CBTC Articles Amended and the CBTC BylawsRestated Bylaws of BHB, all action necessary to convene an appropriate a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCBHB’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC BHB Meeting”)) and, as promptly as practicable subject to Section 5.08, shall take all lawful action to solicit such approval by such shareholders. BHB agrees to use its reasonable best efforts to convene the BHB Meeting within thirty-five (35) days after the Registration Statement is declared effectiveinitial mailing of the Joint Proxy Statement/Prospectus to shareholders of BHB pursuant to Section 5.05, and in any event shall convene the BHB Meeting within forty-five (45) days after such mailing. Except for matters that would ordinarily be considered at BHB’s annual meeting of shareholders or with the prior approval of LSBG, no other matters shall be submitted for the approval of BHB shareholders at the BHB Meeting. The CBTC BHB Board shall at all times prior to and during the BHB Meeting recommend that adoption of this Agreement by the CBTC shareholders approve of BHB and adopt shall not withhold, withdraw, amend or modify such recommendation in any manner or take any other action or make any other public statement inconsistent with such recommendation.
(b) LSBG agrees to take, in accordance with applicable law, the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of LSBG, all action necessary to convene a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by LSBG’s shareholders in order to permit consummation of the transactions contemplated hereby; provided by this Agreement (including any adjournment or postponement, the “LSBG Meeting”) and, subject to Section 5.08, shall take all lawful action to solicit such approval by such shareholders. LSBG agrees to use its reasonable best efforts to convene the LSBG Meeting within thirty-five (35) days after the initial mailing of the Joint Proxy Statement/Prospectus to shareholders of LSBG pursuant to Section 5.05, and in any event shall convene the LSBG Meeting within forty-five (45) days after such mailing. Except for matters that would ordinarily be considered at LSBG’s annual meeting of shareholders or with the CBTC prior approval of BHB, no other matters shall be submitted for the approval of LSBG shareholders at the LSBG Meeting. The LSBG Board may fail shall at all times prior to and during the LSBG Meeting recommend adoption of this Agreement by the shareholders of LSBG (the “LSBG Recommendation”) and shall not withhold, withdraw, amend or modify such recommendation in any manner adverse to BHB or take any other action or make any other public statement inconsistent with such recommendation, or change, withdraw, qualify or modify, or publicly propose except as and to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United extent expressly permitted by Section 5.11 (a “Notice Change in Recommendation”). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the shareholders of Recommendation Change”) of its intent LSBG for their approval at the LSBG Meeting and nothing contained herein shall be deemed to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery relieve LSBG of such notice, which notice shall specify any material terms obligation (unless and conditions of any applicable Superior Proposal (and include a copy thereof until this agreement is terminated in accordance with all accompanying documentation, if in writingSection 7.01), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Lake Sunapee Bank Group), Merger Agreement (Bar Harbor Bankshares)
Shareholder Approval. CBTC agrees to take(a) As soon as reasonably practicable following the date hereof, Consumers shall take all action necessary in accordance with applicable law the Exchange Act, the laws of the Commonwealth of Pennsylvania and its Articles of Incorporation and Bylaws to call and give notice of a meeting (the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting "Meeting") of its shareholders to consider and vote upon the approval and adoption of this Agreement the Plan of Merger and for such other purposes as may be necessary or desirable. The Board of Directors of Consumers has unanimously determined that the Merger is advisable and in the best interests of the shareholders of Consumers and, subject to their fiduciary duties as advised by counsel, shall recommend without qualification of any nature that Consumers' shareholders vote to approve and adopt the Plan of Merger and any other matters required to be approved submitted to Consumers' shareholders in connection therewith. The Board of Directors of Consumers shall use commercially reasonable efforts to solicit and secure from shareholders of Consumers such approval and adoption, subject to their fiduciary duties as advised by CBTC’s shareholders for consummation counsel, which efforts shall include causing Consumers to solicit shareholder proxies therefor and advising LaSalle promptly upon its request from time to time as to the status of the Merger (including shareholder vote then tabulated. With regard to any adjournment or postponementshares of Consumers' Common Stock held by the ESOP, the “CBTC Meeting”)trustee of the ESOP shall vote upon the approval and adoption of the Plan of Merger with regard to all such shares of Common Stock in accordance with the terms of the ESOP, as promptly as practicable after Sections 404 and 406 of ERISA, and Section 4975 of the Registration Statement is declared effective. The CBTC Board Code.
(b) Consumers shall recommend that prepare and file with the CBTC shareholders approve and adopt SEC under the Agreement Exchange Act and the transactions contemplated hereby; provided that rules and regulations promulgated by the CBTC Board may fail SEC thereunder within 15 days following the date hereof, a preliminary draft of the Proxy Statement. LaSalle and CAC shall cooperate with Consumers in the preparation and filing of the Proxy Statement and any amendments and supplements thereto. Neither the Proxy Statement nor any preliminary draft thereof shall be filed, no amendment or supplement thereto shall be made, nor shall any communication with the SEC be initiated, by Consumers, in each case, without prior consultation with LaSalle and their counsel and without first having sent such materials to make such recommendationLaSalle for its comments. Consumers will use commercially reasonable efforts to have any review of the Proxy Statement conducted by the SEC promptly. As soon as reasonably practicable following completion of any review by, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any the absence of such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changereview, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions termination of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such casewaiting period of, the five (5) business day period referred SEC, Consumers shall cause to in this Section 7.02 shall be reduced mailed a definitive Proxy Statement to three (3) business days following its shareholders entitled to vote on the delivery Plan of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawMerger.
Appears in 2 contracts
Samples: Merger Agreement (Consumers Financial Corp), Merger Agreement (Consumers Financial Corp)
Shareholder Approval. CBTC agrees (a) The Granite Board has resolved to take, in accordance with applicable law recommend to the Granite stockholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders to carry out the intentions of this Agreement. In furtherance of that obligation, as promptly as reasonably practicable after the Registration Statement is declared effective under the Securities Act, Granite shall (i) take all lawful action to duly call, give notice of, convene and hold a meeting of its stockholders for consummation the purpose of obtaining the adoption of this Agreement and the approval of the Merger (including any adjournment or postponement, the “CBTC Granite Stockholders Meeting”) by the holders of a majority of the outstanding shares of Granite Stock entitled to vote thereon (the “Granite Stockholder Approval”), (ii) use its reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to Granite’s stockholders and (iii) subject to Section 5.08, include the Granite Recommendation in the Joint Proxy Statement/Prospectus. The Granite Board shall not directly or indirectly (x) withdraw, modify or qualify in any manner adverse to FNB such Granite Recommendation or (y) take any other action or make any other public statement in connection with the Granite Stockholders Meeting, or in reference to an Acquisition Proposal, that is inconsistent with such Granite Recommendation except as and to the extent expressly permitted by Section 5.08. Subject to the fiduciary duties of the Granite Board and Section 5.08, Granite shall take all lawful action to solicit from its stockholders proxies in favor of the adoption of this Agreement and the approval of the Merger and shall take all other action necessary or advisable to secure the Granite Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, after consultation with FNB, Granite may adjourn or postpone the Granite Stockholders Meeting to the extent necessary to ensure that any required supplement or amendment to the Joint Proxy Statement/Prospectus is provided to Granite’s stockholders or, if as of the time for which the Granite Stockholders Meeting is originally scheduled (as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of Granite Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Granite Stockholders Meeting. Granite shall otherwise coordinate and cooperate with FNB and its Affiliates with respect to the timing of the Granite Stockholders Meeting and will otherwise comply with all legal requirements applicable to the Granite Stockholders Meeting.
(b) The FNB Board has resolved to recommend to the FNB shareholders that they approve this Agreement and will submit to its shareholders this Agreement and any other matters required to be approved by its shareholders to carry out the intentions of this Agreement. In furtherance of that obligation, as promptly as reasonably practicable after the Registration Statement is declared effective. The CBTC Board effective under the Securities Act, FNB shall recommend that (i) take all lawful action to duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment or postponement, the CBTC shareholders approve and adopt “FNB Shareholders Meeting”) for the Agreement and purpose of obtaining approval of amendments to FNB’s certificate of incorporation necessary to consummate the transactions contemplated hereby; provided that , including, without limitation, the CBTC Board may fail issuance of the shares of FNB Common Stock in the Merger (the “FNB Shareholder Approval”) and (ii) use its reasonable best efforts to make such recommendation, or change, withdraw, qualify or modify, or publicly propose cause the Joint Proxy Statement/Prospectus to change, withdraw, qualify or modify, in a manner that is adverse be mailed to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect FNB’s shareholders. Subject to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of FNB Board, (i) the CBTC FNB Board under applicable law; provided that: shall make the FNB Recommendation and include such recommendation in the Joint Proxy Statement/Prospectus, and (aii) prior neither the FNB Board nor any committee thereof shall withdraw or modify, or propose or resolve to making an Adverse Recommendation Changewithdraw or modify in a manner adverse to Granite, the CBTC Board shall provide written notice FNB Recommendation. Subject to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members FNB Board, FNB shall take all action that is both commercially reasonable and lawful to solicit from its shareholders proxies in favor of the CBTC Board under applicable lawFNB Shareholder Approval and shall take all other action necessary or advisable to secure the vote or consent of the FNB shareholders required by the NCBCA and the NASDAQ Listing Rules to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, FNB, after consultation with Granite, may adjourn or postpone the FNB Shareholders Meeting to the extent necessary to ensure that any required supplement or amendment to the Joint Proxy Statement/Prospectus is provided to FNB’s shareholders or, if as of the time for which the FNB Shareholders Meeting is originally scheduled (as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of FNB Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the FNB Meeting.
Appears in 2 contracts
Samples: Merger Agreement (Bank of Granite Corp), Merger Agreement (FNB United Corp.)
Shareholder Approval. CBTC (a) Each of TCFC and SHBI agrees to take, in accordance with applicable law and the CBTC TCFC Articles and the CBTC TCFC Bylaws, in the case of TCFC, and the SHBI Articles and the SHBI Bylaws in the case of SHBI, all action necessary to convene an appropriate as soon as reasonably practicable a meeting of its respective shareholders after the Registration Statement (as defined below) is declared effective to consider and vote upon the approval of this Agreement, the issuance of the shares of SHBI Common Stock to the TCFC shareholders as the Merger Consideration in the Merger, and any other matters required to be approved by their respective shareholders for consummation of the Transaction (including any adjournment or postponement, the “TCFC Meeting” and the "SHBI Meeting", respectively), and each of TCFC and SHBI shall use its reasonable best efforts to cause such meetings to occur as soon as reasonably practicable and on the same date and to set the same record date for such meetings. Except with the prior approval of the other party, no other matters shall be submitted for the approval of the TCFC shareholders at the TCFC Meeting or the SHBI shareholders to the SHBI Meeting. Subject to Section 6.02(b), each of the TCFC Board and the SHBI Board shall at all times prior to and during such TCFC Meeting and SHBI Meeting, respectively, recommend such approval and shall take all reasonable lawful action to solicit such approval by its respective shareholders and shall not (x) withdraw, modify or qualify in any manner adverse to the other party such recommendation or (y) take any other action or make any other public statement in connection with the TCFC Meeting and the SHBI Meeting inconsistent with such recommendation (collectively, a “Change in Recommendation”), except as and to the extent permitted by Section 6.02(b). Subject to Section 8.01 and Section 8.02, notwithstanding any Change in Recommendation, this Agreement shall be submitted to the TCFC shareholders at the TCFC Meeting and by SHBI to the SHBI shareholders at the SHBI Meeting for the purpose of approving this Agreement and any other matters required to be approved by CBTC’s their respective shareholders in order to consummate the Transaction. In addition to the foregoing, neither TCFC nor SHBI shall submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(b) Notwithstanding the foregoing, TCFC and the TCFC Board on the one hand or SHBI and the SHBI Board on the other hand shall be permitted to effect a Change in Recommendation and submit any approvals required by Section 6.02 without recommendation (which, for consummation the avoidance of doubt, shall constitute a Change in Recommendation) (although the resolutions approving this Agreement as of the Merger (including any adjournment date hereof may not be rescinded or postponement, the “CBTC Meeting”amended), as promptly as practicable after in which event such Board of Directors may communicate the Registration basis for its lack of a recommendation to its shareholders in the Proxy Statement is declared effective. The CBTC Board shall recommend that or an appropriate amendment or supplement thereto to the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”)extent required by law, if and only if, following the CBTC receipt of an Acquisition Proposal:
(i) it shall have complied in all material respects with Section 6.07;
(ii) the TCFC Board hasin the case of TCFC or the SHBI Board in the case of SHBI, after having consulted consulting with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, shall have determined in good faith that the failure to make an Adverse Recommendation Change do so would be reasonably more likely than not to constitute a breach of be inconsistent with the directors’ fiduciary duties of the members of the CBTC Board under applicable law; provided that: ;
(aiii) prior the TCFC Board in the case of TCFC or the SHBI Board in the case of SHBI shall have concluded in good faith, after giving effect to making an Adverse Recommendation Changeany modification of this Agreement which may be offered by the other party pursuant to clause (v) below, that such Acquisition Proposal constitutes a Superior Proposal;
(iv) the CBTC Board recipient of the Acquisition Proposal shall provide written notice to United have notified the other party, at least three (a “Notice of Recommendation Change”3) Business Days in advance, of its intent intention to announce an Adverse effect a Change in Recommendation Change on in response to such Superior Proposal (including the fifth (5thidentity of the party making such Acquisition Proposal) business day following delivery of such notice, which notice shall specify any and have furnished to the other party all the material terms and conditions of any applicable Superior such proposal; and
(v) prior to effecting such a Change in Recommendation, the recipient of the Acquisition Proposal (and include a copy thereof with all accompanying documentation, if in writing)shall have negotiated, and identify shall have caused its financial and legal advisors to negotiate, during the Person making such Superior Proposalperiod following its delivery of the notice referred to in clause (iv) above, if applicable (it being understood that any amendment with the other party in good faith for a period of up to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred Business Days (to in this Section 7.02 shall be reduced the extent the other party had a desire to three (3negotiate) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in modifications to the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood so that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely Acquisition Proposal ceases to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawSuperior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Shore Bancshares Inc), Merger Agreement (Community Financial Corp /Md/)
Shareholder Approval. CBTC The Company agrees to take, in accordance with applicable law Law and the CBTC Articles Company Charter and the CBTC Company Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly soon as practicable after the Registration Statement is declared effective (and will in any event use reasonable best efforts to convene such meeting no later than fifty-five (55) calendar days after the Registration Statement is declared effective), a special meeting or meetings of its shareholders duly called and held for such purposes (the “Company Meeting”) to consider and to obtain the Company Shareholder Approval. Subject to Section 5.06(c), the Company Board shall at all times prior to and during such special meeting recommend such approval and shall use its reasonable best efforts to solicit such approval by its shareholders (the “Company Board Recommendation”). Without limiting the generality of the foregoing, unless this Agreement has terminated in accordance with its terms, this Agreement and the Merger shall be submitted to the Company’s shareholders at the Company Meeting whether or not (x) the Company’s Board of Directors shall have effected a Company Change of Recommendation or (y) any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to the Company or any of its advisors. The CBTC Board Company shall recommend not, without the prior written consent of Parent, adjourn or postpone the Company Meeting; provided that the CBTC Company may, without the prior written consent of Parent, adjourn or postpone the Company Meeting (A) if, as of the time for which the Company Meeting is originally scheduled (as set forth in the Prospectus/Proxy Statement), there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting, (B) after consultation with Parent, if the failure to adjourn or postpone the Company Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required supplement or amendment to the Prospectus/Proxy Statement, or (C) after consultation with Parent, for a single period not to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Company Shareholder Approval. Parent may require the Company to adjourn, delay or postpone the Company Meeting once for a period not to exceed thirty (30) calendar days (but prior to the date that is four (4) Business Days prior to the End Date) to solicit additional proxies necessary to obtain the Company Shareholder Approval. Once the Company has established a record date for the Company Meeting, the Company shall not change such record date or establish a different record date for the Company Meeting without the prior written consent of Parent, unless required to do so by applicable Law or the Company Charter or the Company Bylaws or in connection with a postponement or adjournment of the Company Meeting permitted by this Section 5.04. Without the prior written consent of Parent, approval of the principal terms of this Agreement and the transactions contemplated hereby (including the Merger) shall be the only matter (other than matters of procedure (including a customary adjournment proposal to solicit additional proxies if necessary to obtain the Company Shareholder Approval) and matters required by applicable Law to be voted on by the Company’s shareholders approve and adopt in connection with the approval of this Agreement and the transactions contemplated hereby; provided ) that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly Company shall propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if be acted on by the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach shareholders of the fiduciary duties of Company at the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawCompany Meeting.
Appears in 2 contracts
Samples: Merger Agreement (CU Bancorp), Merger Agreement (Pacwest Bancorp)
Shareholder Approval. CBTC (a) Company shall as promptly as practicable, but in any event within forty-five (45) days after the date hereof, prepare a proxy statement relating to the Company Shareholders Meeting (the “Proxy Statement”) that conforms with the requirements of the CBCA and applicable Law, including the requirements of any federal or state securities Law, and mail to its shareholders as promptly as reasonably practicable, the Proxy Statement and all other customary proxy or other materials for meetings such as the Company Shareholders Meeting and, to the extent required by applicable Law, as promptly as reasonably practicable prepare and distribute to Company shareholders any supplement or amendment to the Proxy Statement if any event shall occur which requires such action at any time prior to the Company Shareholders Meeting. Parent shall cooperate with Company in connection with the preparation of the Proxy Statement, including furnishing Company upon request with any and all information regarding Parent or its Affiliates and the plans of such Persons for the Surviving Corporation after the Effective Time. The information supplied by Parent for inclusion in the Proxy Statement or any amendment or supplement thereto shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Company shall provide Parent and its Representatives a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, prior to disseminating to the shareholders of Company, and Company shall consider any comments proposed by Parent in good faith. Parent agrees promptly to takenotify Company if at any time prior to the Company Shareholders Meeting any information provided by Parent or its Affiliates in the Proxy Statement, or any amendment thereto, becomes incorrect or incomplete in any material respect, and to provide the information needed to correct such inaccuracy or omission.
(b) Subject to Section 8.1, Company shall take all action necessary in accordance with applicable law the CBCA and the CBTC Company Articles of Incorporation and the CBTC BylawsCompany Bylaws to duly call, all action necessary to give notice of, convene an appropriate and hold a meeting of its shareholders as promptly as practicable for the purpose of obtaining the Requisite Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Shareholders Meeting”), and, except in the case of (i) a Company Adverse Recommendation Change pursuant to consider and vote upon the approval Section 6.8(f) or (ii) termination of this Agreement pursuant to Section 8.1, shall solicit, and use its Specified Efforts to obtain, the Requisite Shareholder Approval thereat and shall include the Company Board Recommendation in the Proxy Statement. Company agrees that, unless this Agreement is terminated pursuant to Section 8.1, its obligations pursuant to this Section 6.3(b) to convene and hold the Company Shareholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any other matters Company Takeover Proposal or by the effecting of a Company Adverse Recommendation Change.
(c) Company shall cooperate with and keep Parent informed on a current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its shareholders. Notwithstanding anything to the contrary contained in this Agreement, Company may adjourn or postpone the Company Shareholders Meeting (i) to the extent required by applicable Law, (ii) if as of the time for which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Voting Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting or (iii) with the prior written consent of Parent (which shall not be unreasonably withheld, delayed or conditioned). In addition, if at any time following the dissemination of the Proxy Statement, either Company or Parent reasonably determines in good faith that the Requisite Shareholder Approval is unlikely to be approved by CBTC’s shareholders for consummation obtained at the Company Shareholders Meeting, then on a single occasion and prior to the vote contemplated having been taken, each of Company and Parent shall have the right to require a single adjournment or postponement of the Merger Company Shareholders Meeting; provided, that no such adjournments or postponements shall delay the Company Shareholders Meeting by more than forty-five (including 45) days from the originally scheduled date. During any such period of adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board Company shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail continue in all respects to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted comply with its financial advisor with respect to financial matters obligations under this Section 6.3 and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to Section 6.8. Except as set forth in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change6.3, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United Company shall not be required have any obligation to propose any such adjustments); and (c) postpone or adjourn the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawCompany Shareholders Meeting.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Triumph Bancorp, Inc.)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate (a) Southside shall call a special meeting of its shareholders to consider and vote be held as soon as is reasonably possible for the purpose of voting upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of Agreement, the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that , including, but not limited to, the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach issuance of the fiduciary duties Surviving Corporation Common Stock in the Merger. In connection with such meeting, Allegiant shall prepare, subject to the review and consent of Southside, the Joint Proxy Statement/Prospectus (which shall be part of the members Registration Statement to be filed with the SEC by Southside) and mail the same to the shareholders of Southside. The Board of Directors of Southside shall submit for approval of Southside's shareholders the CBTC matters to be voted upon at such meeting. The Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changeof Directors of Southside hereby does and will recommend this Agreement, the CBTC Board shall provide written notice Merger and the transactions contemplated hereby to United (a “Notice the shareholders of Recommendation Change”) Southside and use its reasonable best efforts to obtain any vote of its intent Southside's shareholders necessary for the approval of this Agreement, subject to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); 4.03.
(b) after providing Allegiant shall call a special meeting of its shareholders to be held as soon as is reasonably possible for the purpose of voting upon this Agreement, the Merger and the transactions contemplated hereby. In connection with such Notice meeting, Allegiant shall prepare, subject to the review and consent of Recommendation ChangeSouthside, CBTC the Joint Proxy Statement/Prospectus (which shall negotiate in good faith be part of the Registration Statement to be filed with United (if requested the SEC by UnitedSouthside) and provide United mail the same to the shareholders of Allegiant. The Board of Directors of Allegiant shall submit for approval of Allegiant's shareholders the matters to be voted upon at such meeting. The Board of Directors of Allegiant hereby does and will recommend this Agreement, the Merger and the transactions contemplated hereby to the shareholders of Allegiant and use its reasonable opportunity during best efforts to obtain any vote of Allegiant's shareholders necessary for the subsequent five (5) business day period to make such adjustments in the terms and conditions approval of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Southside Bancshares Corp), Merger Agreement (Allegiant Bancorp Inc)
Shareholder Approval. CBTC agrees If the Exchange Approval Meeting has not occurred prior to takea Specified Termination Event, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”)then, as promptly as practicable after following the Registration Statement occurrence of a Specified Termination Event, to the extent that Lionsgate is declared effective. The CBTC Board required by applicable stock exchange rules to obtain stockholder approval of the issuance of the Lionsgate Exchange Shares, Lionsgate shall recommend that prepare and file with the CBTC shareholders approve and adopt SEC, an appropriate proxy statement (the Agreement and “Proxy Statement”) seeking approval of the transactions contemplated hereby; by this Agreement (the “Stockholder Approval”). Lionsgate shall use its reasonable best efforts to cause the Proxy Statement to comply with the rules and regulations promulgated by the SEC. Each Stockholder shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Proxy Statement. Lionsgate shall duly give notice of, convene and hold a stockholders’ meeting (the “Stockholders’ Meeting”) as promptly as practicable following the date the Proxy Statement is filed, but no later than 120 days after the Specified Termination Event, for the purpose of seeking the Stockholder Approval (or adjournment of the Stockholders’ Meeting under certain circumstances) and shall, (a) recommend to its stockholders approval of the issuance of Lionsgate Exchange Shares and include in the Proxy Statement such recommendation and (b) use its reasonable best efforts to solicit such approval and obtain the Stockholder Approval. Once the Stockholders’ Meeting has been called and noticed, Lionsgate may only adjourn or postpone the Stockholders’ Meeting (x) to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided that to its stockholders in advance of a vote on the CBTC Board may fail to make such recommendationStockholder Approval, or change(y) if, withdrawas of the time for which the Stockholders’ Meeting is originally scheduled, qualify there are insufficient shares of Lionsgate common stock represented (either in person or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely by proxy) to constitute a breach quorum necessary to conduct the business of such meeting and, in any such case (clause (x) or (y)), only for a minimum period of time reasonable under such circumstance. Lionsgate shall ensure that the fiduciary duties of Stockholders’ Meeting is called, noticed, convened, held and conducted, and that all proxies solicited in connection with the members of the CBTC Board under Stockholders’ Meeting are solicited in compliance with applicable law; provided that: (a) prior to making an Adverse Recommendation ChangeLaw, the CBTC Board shall provide written notice to United (a “Notice rules of Recommendation Change”) NYSE and the organizational documents of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawLionsgate.
Appears in 2 contracts
Samples: Stock Exchange Agreement, Stock Exchange Agreement (Lions Gate Entertainment Corp /Cn/)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, (a) Company shall take all action steps necessary to duly call, give notice of, convene an appropriate and hold a meeting of its shareholders (the “Company Shareholders’ Meeting”), to consider and vote be held as soon as practicable after the date on which the Form S-4 becomes effective, for the purpose of voting upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for the consummation of the Merger (including any adjournment or postponementtransactions contemplated hereby. Except as permitted by Section 5.4(b) below, the Board of Directors of Company shall recommend approval and adoption of this Agreement and the consummation of the transactions contemplated hereby (the “CBTC MeetingCompany Recommendation”), shall include such recommendation in the Proxy Statement and shall use all reasonable efforts to obtain the approval of this Agreement by the affirmative vote of the holders of a majority of the outstanding shares of Company Shares entitled to vote thereon at the Company Shareholders’ Meeting (the “Company Shareholder Approval”). Unless permitted by Section 5.4(b) below, neither the Board of Directors of Company nor any committee thereof shall (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to Parent, the approval of this Agreement, the transactions contemplated hereby or the Company Recommendation (any of the foregoing, a “Change in the Company Recommendation”), or (ii) approve or recommend, or propose publicly to approve or recommend, any Alternative Transaction. For purposes of this Agreement, a Change in the Company Recommendation shall include any approval or recommendation (or public proposal to approve or recommend) by the Board of Directors of Company or any committee thereof of an Alternative Transaction, or any failure by the Board of Directors of Company to recommend against an Alternative Transaction within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. In the event that Parent determines that additional time may be required in order to seek the vote of Company shareholders required to obtain the Company Shareholder Approval, Company will delay, postpone or adjourn the Company Shareholders’ Meeting as promptly as practicable after requested by Parent.
(b) Prior to obtaining the Registration Statement is declared effective. The CBTC Company Shareholder Approval, if the Board shall recommend of Directors of Company has not breached the provisions of Section 5.5, the Board of Directors of Company may effect a Change in the Company Recommendation, if and only to the extent that the CBTC Board of Directors of Company determines in good faith (after consulting with outside legal counsel) that failure to effect such Change in the Company Recommendation would violate the fiduciary duties of Company Board of Directors under Delaware corporation law; provided, that, prior to taking any such action, Company has given Parent (orally and in writing) notice at least ten (10) Business Days prior to such change, which notice advises Parent of the decision of the Board of Directors of Company to take such action, including the reasons therefor.
(c) Nothing contained in this Agreement shall prevent the Board of Directors of Company from complying with Rules 14d-9 or 14e-2 under the Exchange Act with regard to an Alternative Transaction; provided, however, that any such disclosure that relates to a Alternative Transaction (other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change in Company Recommendation (and, for the avoidance of doubt, any such Change in Company Recommendation shall be subject to the provisions of Section 5.4(b)) unless the Board of Directors of Company reaffirms the Company Recommendation in such disclosure.
(d) Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, (i) this Agreement shall be submitted to the shareholders approve of Company for the purpose of voting on the approval and adopt the adoption of this Agreement and the transactions contemplated hereby; provided that , and nothing contained herein shall be deemed to relieve Company of such obligation, and (ii) Company shall not submit to the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice vote of its outside legal counselshareholders any Alternative Proposal, determined that shall not enter into any contract or agreement providing for any Alternative Transaction and shall not permit the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions consummation of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawAlternative Transaction.
Appears in 2 contracts
Samples: Merger Agreement (Capital Title Group Inc), Merger Agreement (Landamerica Financial Group Inc)
Shareholder Approval. CBTC (a) Company agrees to take, in accordance with applicable law Law, the Articles of Organization of Company and the CBTC Articles and the CBTC BylawsBylaws of Company, all action necessary to convene an appropriate a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCCompany’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC Company Meeting”) and, subject to Section 6.07, shall take all lawful action to solicit shareholder approval, including by communicating to its shareholders its recommendation (and including such recommendation in the Joint Proxy Statement-Prospectus) that they approve this Agreement and the transactions contemplated hereby (the “Company Board Recommendation”) and shall not make a Company Adverse Recommendation Change, except in accordance with Section 6.07. Company shall engage a proxy solicitor reasonably acceptable to Buyer to assist in the solicitation of proxies from shareholders relating to the Requisite Company Shareholder Approval. Except in accordance with the terms of Section 6.07, Company’s board of directors shall at all times prior to and during the Company Meeting recommend approval of this Agreement by the shareholders of Company and shall not withhold, withdraw, amend, or modify their recommendation in any manner adverse to Buyer or take any other action or make any other public statement inconsistent with their recommendation. Notwithstanding any Company Adverse Recommendation Change, Company shall submit this Agreement to its shareholders for their consideration at the Company Meeting and nothing in this Agreement shall relieve Company of the obligation to do so. In the event that there is present at the Company Meeting, in person or by proxy, sufficient favorable voting power to secure the Requisite Company Shareholder Approval, Company will not adjourn or postpone the Company Meeting unless Company is advised by counsel that failure to do so would reasonably be likely to result in a breach of the U.S. federal securities Laws or fiduciary duties of Company’s board of directors. Company shall keep Buyer updated with respect to the proxy solicitation results in connection with the Company Meeting as reasonably requested by Xxxxx. Company shall adjourn or postpone the Company Meeting, if, as of the time for which such meeting is originally scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting, Company has not received proxies representing a sufficient number of shares necessary to obtain the Requisite Company Shareholder Approval. Company shall only be required to adjourn or postpone the Company Meeting two (2) times, for aggregate adjournments or postponements not exceeding sixty (60) calendar days, pursuant to the immediately preceding sentence of this Section 6.02(a) and any further adjournment or postponement of the Company Meeting shall require the prior written consent of Buyer.
(b) Xxxxx agrees to take, in accordance with applicable Law, the Articles of Organization of Buyer and the Bylaws of Buyer, all action necessary to convene a meeting of its shareholders to consider and vote upon the approval of the Buyer Share Issuance and any other matters required to be approved by Buyer’s shareholders in order to permit consummation of the transactions contemplated by this Agreement (including any adjournment or postponement, the “Buyer Meeting”) and, except in the case of a Buyer Adverse Recommendation Change, shall take all lawful action to solicit shareholder approval, including by communicating to its shareholders its recommendation (and including such recommendation in the Joint Proxy Statement-Prospectus) that they approve the Buyer Share Issuance (the “Buyer Board Recommendation”), and shall not make a Buyer Adverse Recommendation Change except in accordance with Section 6.07. Except in accordance with the terms of Section 6.07, Xxxxx’s board of directors shall at all times prior to and during the Buyer Meeting recommend approval of this Agreement by the shareholders of Buyer and shall not withhold, withdraw, amend, or modify their recommendation in any manner adverse to Company or take any other action or make any other public statement inconsistent with their recommendation. Notwithstanding any Buyer Adverse Recommendation Change, Buyer shall submit this Agreement to its shareholders for their consideration at the Buyer Meeting and nothing in this Agreement shall relieve Buyer of the obligation to do so. In the event that there is present at the Buyer Meeting, in person or by proxy, sufficient favorable voting power to secure the Requisite Buyer Shareholder Approval, Buyer will not adjourn or postpone the Buyer Meeting unless Company has adjourned or postponed the Company Meeting or Buyer is advised by counsel that failure to do so would reasonably be likely to result in a breach of the U.S. federal securities Laws or fiduciary duties of Buyer’s board of directors. Buyer shall keep Company updated with respect to the proxy solicitation results in connection with the Buyer Meeting as promptly reasonably requested by Company. Buyer shall adjourn or postpone the Buyer Meeting, if, as of the time for which such meeting is originally scheduled, there are insufficient shares of Buyer Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting, Xxxxx has not received proxies representing a sufficient number of shares necessary to obtain the Requisite Buyer Shareholder Approval. Buyer shall only be required to adjourn or postpone the Buyer Meeting two (2) times, for aggregate adjournments or postponements not exceeding sixty (60) calendar days, pursuant to the immediately preceding sentence of this Section 6.02(b) and any further adjournment or postponement of the Buyer Meeting shall require the prior written consent of Company.
(c) Each of Buyer and Company shall use its reasonable best efforts to cause the Buyer Meeting and the Company Meeting to occur as soon as reasonably practicable after the Registration Statement is has been declared effective. The CBTC Board shall recommend that effective and on the CBTC shareholders approve and adopt same date, with the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) Company Meeting occurring prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawBuyer Meeting.
Appears in 2 contracts
Samples: Merger Agreement (Cambridge Bancorp), Merger Agreement (Eastern Bankshares, Inc.)
Shareholder Approval. CBTC (a) Wellesley agrees to take, in accordance with applicable law law, the charter and the CBTC Articles and the CBTC Bylawsbylaws of Wellesley, all action necessary to convene an appropriate a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCWellesley’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC Wellesley Meeting”)) and, as promptly as practicable subject to Section 5.05 and Section 5.11, shall take all lawful action to solicit such approval by such shareholders. Wellesley agrees to use its best efforts to convene the Wellesley Meeting within forty (40) days after the Registration Statement is declared effectiveinitial mailing of the Joint Proxy Statement/Prospectus to shareholders of Wellesley. Except with the prior approval of Cambridge, no other matters shall be submitted for the approval of Wellesley shareholders at the Wellesley Meeting. The CBTC Wellesley Board shall at all times prior to and during the Wellesley Meeting recommend that adoption of this Agreement by the CBTC shareholders approve of Wellesley (the “Wellesley Recommendation”) and adopt shall not withhold, withdraw, amend or modify such recommendation in any manner adverse to Cambridge or take any other action or make any other public statement inconsistent with such recommendation, except as and to the Agreement extent expressly permitted by Section 5.11.
(b) Cambridge agrees to take, in accordance with applicable law, the charter and bylaws of Cambridge, all action necessary to convene a special meeting of its shareholders to consider and vote upon the approval of this Agreement, the issuance of shares of Cambridge Stock in connection with the Merger, and any other matters required to be approved by Cambridge’s shareholders in order to permit consummation of the transactions contemplated hereby; provided that by this Agreement (including any adjournment or postponement, the CBTC “Cambridge Meeting”) and, subject to Section 5.05, shall take all lawful action to solicit such approval by such shareholders. Cambridge agrees to use its best efforts to convene the Cambridge Meeting within forty (40) days after the initial mailing of the Joint Proxy Statement/Prospectus to shareholders of Cambridge. Except with the prior approval of Wellesley, no other matters shall be submitted for the approval of Cambridge shareholders at the Cambridge Meeting. The Cambridge Board may fail shall at all times prior to make such recommendation, or changeand during the Cambridge Meeting recommend adoption of this Agreement by the shareholders of Cambridge and shall not withhold, withdraw, qualify amend or modify, or publicly propose to change, withdraw, qualify or modify, modify such recommendation in a any manner that is adverse to United, Wellesley or take any other action or make any other public statement inconsistent with such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawrecommendation.
Appears in 1 contract
Samples: Merger Agreement (Cambridge Bancorp)
Shareholder Approval. CBTC agrees The Company Board will submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval principal terms of this Agreement and any other matters required to be approved or adopted by CBTC’s shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, the Merger Company will take, in accordance with the CCC, other applicable law, applicable NASDAQ National Market System rules, the rules of any other relevant exchange and its Constituent Documents, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC ”Company Meeting”), as promptly as practicable after practicable, to consider and vote upon approval of the Registration Statement is declared effectiveprincipal terms of this Agreement as well as any other such related matters. The CBTC Company Board shall recommend will use all reasonable best efforts to obtain from its shareholders a vote approving the principal terms of this Agreement, including providing an unqualified recommendation that its shareholders vote in favor of the Merger. The Company Board will not impose a requirement that the CBTC shareholders approve holders of more than a majority of the outstanding shares of the Company Common Stock entitled to vote on the Merger and adopt the principal terms of the Agreement approve the Merger and the transactions contemplated herebyprincipal terms of the Agreement. If the Company Board, after consultation with (and based on the advice of) outside counsel, determines in good faith that, because of the receipt by the Company of an Acquisition Proposal that the Company Board concludes in good faith constitutes a Superior Proposal, it would more likely than not result in a violation of its fiduciary duties under applicable law to continue to recommend the approval of the principal terms of this Agreement, then, in submitting the principal terms of this Agreement to the Company Meeting, the Company Board may submit principal terms of this Agreement to its shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Company Board may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that the CBTC Company Board may fail not take any actions under this sentence until after giving Acquiror at least five business days to make respond to such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Acquisition Proposal (and include a copy thereof with all accompanying documentationafter giving Acquiror notice of the latest material terms, if conditions and identity of the third party in writing), the Acquisition Proposal) and identify the Person making such Superior Proposal, if applicable (it being understood that then taking into account any amendment or modification to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawproposed by Acquiror.
Appears in 1 contract
Shareholder Approval. CBTC agrees The Company shall provide each shareholder entitled to takevote at a special or annual meeting of shareholders of the Company (the “Shareholder Meeting”), which shall be promptly called and held not later than ninety (90) days after the Closing Date (the “Shareholder Meeting Deadline”), a proxy statement, substantially in the form which has been previously reviewed by each of the Buyers and each of their counsel, soliciting each such shareholder’s affirmative vote at the Shareholder Meeting for approval of resolutions providing for the Company’s issuance of all of the Securities as described in the Transaction Documents in accordance with applicable law and the CBTC Articles rules and regulations of Principal Market (such affirmative approval being referred to herein as the “Shareholder Approval” and the CBTC Bylaws, all action necessary date of such Shareholder Approval shall be referred to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, as the “CBTC MeetingShareholder Approval Date”), as promptly as practicable after and the Registration Statement is declared effectiveCompany shall use its best efforts (including bearing commercially reasonable expenses) to solicit its shareholders’ approval of such resolutions (which efforts shall include, without limitation, the requirement to hire a reputable proxy solicitor) and to cause the board of directors of the Company to recommend to the shareholders that they approve such resolutions. The CBTC Board Company shall recommend that be obligated to seek to obtain the CBTC shareholders approve and adopt Shareholder Approval by the Agreement and Shareholder Meeting Deadline. As the transactions contemplated hereby; provided that Company has already filed a preliminary proxy statement with the CBTC Board may fail SEC under Rule 14a-6 with respect to make such recommendationits Annual Meeting of Shareholders to be held on May 28, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation 2008 (an the “Adverse Recommendation ChangePreliminary Proxy Statement”), if the CBTC Board hasCompany shall seek such Shareholder Approval at such Annual Meeting and the Shareholder Meeting Deadline shall be no later than June 30, 2008. In connection therewith, the Company shall within ten (10) days after having consulted the date hereof file with the SEC an amendment to such Preliminary Proxy Statement, in form and substance acceptable to each Buyer and its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that soliciting the failure Shareholder Approval in accordance with the foregoing, and the Company shall cause the definitive proxy materials for such Annual Meeting to make contain such solicitation for the Shareholder Approval and to be in form and substance acceptable to each Buyer and its counsel. If, despite the Company’s best efforts the Shareholder Approval is not obtained on or prior to the Shareholder Meeting Deadline, the Company shall cause an Adverse Recommendation Change would additional Shareholder Meeting to be reasonably likely to constitute a breach held each semi-annual period thereafter until such Shareholder Approval is obtained or until such Shareholder Approval is no longer required under the rules and regulations of the fiduciary duties Principal Market or is no longer required to eliminate restrictions on the issuance of shares of Common Stock pursuant to the members of Notes and Warrants. The Company shall not directly or indirectly take any action which would result in a Dilutive Issuance (as defined in the CBTC Board under applicable law; provided that: (aNotes and Warrants) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood Shareholder Approval Date. The Company agrees that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, action and resulting Dilutive Issuance (as defined in such case, the five (5Notes and Warrants) business day period referred to in this Section 7.02 shall be reduced null and void and that the Buyers would be irreparably harmed to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during extent that the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose Company takes any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawaction.
Appears in 1 contract
Samples: Securities Purchase Agreement (Generex Biotechnology Corp)
Shareholder Approval. CBTC agrees As set forth in the Articles of Amendment, until such time as the Shareholder Approval is obtained, the Preferred Shares will be subject to takelimitations on voting rights and will have no voting rights. As promptly as practicable following the Preferred Closing Date (and in any event within sixty (60) Business Days following the Preferred Closing Date), in accordance the Company shall prepare and file with applicable law and the CBTC Articles and SEC a proxy statement (the CBTC Bylaws, all action necessary “Proxy Statement”) that includes a proposal for approval by the holders of Common Stock to convene an appropriate meeting approve the issuance of its shareholders Common Stock upon conversion of the Series B Preferred Stock of the Company issued to consider and vote upon the approval of Purchaser pursuant to this Agreement as required under the listing rules of the Nasdaq Stock Market (and any successor thereto and any other matters required to be approved by CBTC’s shareholders for consummation trading market on which the Common Stock is listed), including Nasdaq Listing Rule 5635(b) and Nasdaq Listing Rule 5635(d) (the “Shareholder Approval”) at a special meeting of the Merger shareholders of the Company (including any adjournment or postponement, the “CBTC Company Shareholder Meeting”). Subject to the directors’ fiduciary duties, the Proxy Statement shall include the recommendation from the Board of Directors that the shareholders vote in favor of the Shareholder Approval. The Company shall use reasonable best efforts to solicit from the shareholders proxies in favor of the Shareholder Approval and to obtain the Shareholder Approval. Purchaser agrees to furnish to the Company all information concerning Purchaser and its Affiliates as the Company may reasonably request in connection with the preparation and filing of the Proxy Statement and the Company Shareholder Meeting. The Company shall, as promptly as practicable after following the Registration Statement is declared effective. The CBTC Board shall recommend earlier of (i) date on which the SEC confirms that it has no further comments on the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendationProxy Statement, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (aii) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business ten calendars days following the delivery filing of a preliminary proxy statement if the Company receives no comments from the SEC during such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business ten day period, determines in good faithtake all action reasonably required, after consultation with its financial advisors including under the OBCA, the Company’s Articles of Incorporation and outside counsel, that Bylaws and the failure to take such action would be reasonably likely to constitute a breach applicable rules of the fiduciary duties of Nasdaq Stock Market, to, as soon as reasonably practicable thereafter, duly call, convene and hold the members of Company Shareholder Meeting. Neither the CBTC Board under applicable lawClosing Shares nor the Preferred Shares will be entitled to vote in connection with the Shareholder Approval.
Appears in 1 contract
Shareholder Approval. CBTC agrees to takeAs soon as practicable following the execution and delivery of this Agreement, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval Company shall give written notice of this Agreement and the proposed Merger to all Company shareholders and shall use commercially reasonable efforts to take all other action necessary in accordance with the California Code and its Articles of Incorporation and Bylaws to convene a meeting of the shareholders of the Company or to secure the written consent of its shareholders ("Company Shareholder Action") before December 31, 2000. The Company shall submit this Agreement to its shareholders for adoption whether or not the Company's Board of Directors determines at any time subsequent to declaring its advisability that this Agreement is no longer advisable and recommends that its shareholders reject it. The Company shall consult with Broadcom regarding the date of the Company Shareholder Action and shall not postpone or adjourn (other matters than for the absence of a quorum) any meeting of the shareholders of the Company without the consent of Broadcom, which consent shall not be unreasonably withheld. The Company shall use all commercially reasonable efforts required to be approved by CBTC’s solicit and obtain from shareholders for consummation of the Company proxies or written consents in favor of the Merger and this Agreement and shall take all other action necessary or advisable to secure the vote or written consent of shareholders required to effect the Merger. The Company shall establish a record date for determining the shareholders of the Company entitled to vote or consent in connection with the Company Shareholder Action that is as early as possible after the date of this Agreement. The materials submitted to the shareholders of the Company in respect of the Merger shall have been subject to prior review and comment by Broadcom and shall include (including any adjournment or postponementa) information regarding the Company, the “CBTC Meeting”)terms of the Merger and this Agreement, as promptly as practicable after (b) the Registration Statement is declared effective. The CBTC unanimous recommendation of the Board shall recommend of Directors of the Company that the CBTC Company's shareholders approve the Merger and adopt the this Agreement and the transactions contemplated hereby; provided that hereby and approve and execute such other documents as may be required to satisfy the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach applicable requirements of the fiduciary duties Securities Act in connection with the issuance and sale of Broadcom Common Stock in the Merger, (c) the conclusion of the members Board of Directors of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood Company that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement the Merger are advisable, fair and reasonable to, and in the best interests of, the Company's shareholders and (d) such other documents as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not may be required to propose any such adjustments); and (c) satisfy the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach applicable requirements of the fiduciary duties Securities Act in connection with the issuance and sale of Broadcom Common Stock in the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Samples: Merger Agreement (Broadcom Corp)
Shareholder Approval. CBTC agrees to take, in accordance The Company shall prepare and file with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”)SEC, as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend date hereof but in no event later than twenty (20) days after the date hereof, an information statement (the “Information Statement”), in a form reasonably acceptable to the Buyers and Xxxxxxxxx Xxxxxxx LLP, at the expense of the Company, with the Company obligated to reimburse the expenses of Xxxxxxxxx Traurig LLP incurred in connection therewith in an amount not exceed $5,000, informing the shareholders of the Company of the receipt of the consents of the holders of a majority of the outstanding voting securities of the Company in the form attached hereto as Exhibit G (the “Shareholder Consent”) approving the Shareholder Resolutions (the “Shareholder Resolutions”, and such required affirmative approval by the shareholders of the Company of such Shareholder Resolutions as determined in accordance with the Articles of Incorporation and the Bylaws, the “Shareholder Approval”) that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that , including, without limitation, the CBTC Board may fail issuance and terms of the Securities and the approval of such transactions pursuant to make such recommendationapplicable law and the rules and regulations of the Principal Market. In addition to the foregoing, if otherwise required by applicable law, rule or regulation, or changeif the Shareholder Consent is not sufficient to obtain the Shareholder Approval, withdraw, qualify the Company shall prepare and file with the SEC a preliminary proxy statement with respect to a special or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation annual meeting of the shareholders of the Company (an the “Adverse Recommendation ChangeShareholder Meeting”), if which shall be called as promptly as practicable after the CBTC Board hasdate hereof, after having consulted with its financial advisor with respect but in no event later than August 4, 2012 (the “Shareholder Meeting Deadline”) soliciting each such shareholder’s affirmative vote for approval of, to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changeextent not previously adopted, the CBTC Board shall provide written notice to United Shareholder Resolutions (a the date such Shareholder Approval is obtained, the “Notice of Recommendation ChangeShareholder Approval Date”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment Company shall use its reasonable best efforts to any material term solicit its shareholders’ approval of such Superior Proposal Shareholder Resolutions and to cause the Board of Directors of the Company to recommend to the shareholders that they approve the Shareholder Resolutions. The Company shall require a new Notice of Recommendation Changebe obligated to seek to obtain the Shareholder Approval by the Shareholder Meeting Deadline. If, except that, in such casedespite the Company’s best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the five (5) business day period referred Company shall cause an additional Stockholder Meeting to in this Section 7.02 shall be reduced to three (3) business days following the delivery of held each calendar quarter thereafter until such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawStockholder Approval is obtained.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Domain Media Group, Inc.)
Shareholder Approval. CBTC agrees to take, in accordance with (a) Bancshares shall take all steps under applicable law laws and the CBTC Articles its Certificate of Incorporation and the CBTC Bylaws, all action Bylaws necessary to duly call, give notice of, convene an appropriate meeting and hold the Bancshares Shareholders Meeting as soon as reasonably practicable after the Registration Statement is declared effective for the purpose of its shareholders to consider (i) considering and vote voting upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that hereby and (ii) for such other purposes consistent with the CBTC Board complete performance of this Agreement as may fail to make such recommendation, or change, be necessary and desirable.
(b) of Directors of Bancshares nor any committee thereof shall withdraw, qualify amend or modify, or publicly propose or resolve to change, withdraw, qualify amend or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangeSWB, the CBTC Board shall provide written notice to United (a “Notice recommendation that Bancshares’ shareholders vote in favor of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (adopt and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of approve this Agreement as would enable and the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and Merger.
(c) Nothing in this Agreement shall prevent the CBTC BoardBoard of Directors of Bancshares from, following such five prior to a favorable vote of the Bancshares shareholders, withholding, withdrawing, amending or modifying its recommendation in favor of adopting and approving this Agreement and the Merger or from not including its recommendation in favor of adopting and approving this Agreement and the Merger in the Proxy Materials if (5i) business day period, determines a Superior Proposal is made to Bancshares and not withdrawn; (ii) neither Bancshares nor any of its representatives shall have violated any of the restrictions set forth in Section 7.4; (iii) the Board of Directors of Bancshares concludes in good faith, after consultation with and receiving advice from its financial advisors and outside counsel, that that, in light of such Superior Proposal, the failure withholding, withdrawal, amendment or modification of such recommendation is necessary in order for the Board of Directors of Bancshares to take such action would be reasonably likely comply with its fiduciary obligations to constitute a breach of the fiduciary duties of the members of the CBTC Board Bancshares’ shareholders under applicable law; and (iv) to the extent applicable, Bancshares complies with the requirements of Sections 7.5 and 9.1(d); provided, however, that prior to any withholding, withdrawal, amendment or modification of the Bancshares Board’s recommendation, Bancshares shall have given SWB at least two Business Days notice thereof and the opportunity to meet with Bancshares and its counsel. Nothing contained in this Section 7.4(c) shall limit Bancshares’ obligation to hold and convene the Bancshares Shareholders Meeting (regardless of whether the recommendation of the Board of Directors of Bancshares shall have been withheld, withdrawn, amended or modified).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Southwest Bancorp Inc)
Shareholder Approval. CBTC agrees The Company agrees: (i) that, prior to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of any Business Combination, it will submit such transaction to the Merger Company’s stockholders for their approval (including any adjournment or postponement, the “CBTC MeetingInitial Transaction Vote”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), ) even if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach nature of the fiduciary duties of the members of the CBTC Board acquisition is such as would not ordinarily require stockholder approval under applicable state law; provided that: and (aii) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such casethe event that the Company does not effect a Business Combination within 24 months from the date of the Final Prospectus (or 30 months from the date of the Final Prospectus if the extended period is approved as described in the General Disclosure Package (the “Extended Period”)), the five (5) business day period referred to Company will be liquidated as described in the General Disclosure Package. At the time the Company seeks approval of the Extended Period or any potential Business Combination, the Company will offer each of the holders of the Company’s Common Stock included in the Units issued in this Section 7.02 shall be reduced offering (the “IPO Shares”) the right to three convert such holder’s IPO Shares at a per share price (3the “Conversion Price”) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments calculated as described in the terms General Disclosure Package. If the Company’s stockholders approve the Extended Period or a Business Combination and conditions an amendment to the Company’s amended and restated certificate of this Agreement incorporation effecting the Extended Period is filed with the Secretary of State of Delaware or the Business Combination is consummated, as would enable applicable, the CBTC Board Company will convert shares, based upon the Conversion Price, of those holders of IPO Shares who (i) affirmatively requested such conversion and (ii) who voted against the Extended Period or a Business Combination, as applicable. If holders of a majority in interest of the IPO Shares voted are not voted in favor of the Extended Period, holders of a majority in interest of the Company’s outstanding common stock voted are not voted in favor of an amendment to proceed without an Adverse Recommendation Change (it being understood that United shall the Company’s amended and restated certificate of incorporation effecting the Extended Period or holders of 40% or more of the IPO Shares vote against the Extended Period and exercise their conversion rights, the Extended Period will not be required to propose any approved and the Company will not convert such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines IPO Shares. If holders of a majority in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach interest of the fiduciary duties IPO Shares voted are not voted in favor of the members Business Combination, holders of a majority in interest of the CBTC Board under applicable lawCompany’s outstanding common stock voted are not voted in favor of an amendment to the Company’s amended and restated certificate of incorporation providing for the Company’s perpetual existence or holders of 40% or more of the IPO Shares vote against the Business Combination and exercise their conversion rights, on a cumulative basis with the public stockholders who previously exercised their conversion rights in connection with a proposal to approve the Extended Period, the Business Combination will not be approved and the Company will not convert such IPO Shares.
Appears in 1 contract
Shareholder Approval. CBTC (a) Hawthorne agrees to take, in accordance with applicable law and the CBTC Articles Hawthorne Certificate and the CBTC Hawthorne Bylaws, all action necessary to convene as soon as reasonably practicable an appropriate annual or special meeting of its shareholders stockholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCHawthorne’s shareholders stockholders for consummation of the Merger Transaction (including any adjournment or postponement, the “CBTC Hawthorne Meeting”). Except for the election of directors or other matters determined reasonably necessary by Hawthorne, as promptly as practicable after no other matters shall be submitted for the Registration Statement is declared effectiveapproval of the Hawthorne stockholders at the Hawthorne Meeting. The CBTC Hawthorne Board shall at all times prior to and during such meeting recommend that the CBTC shareholders approve such approval and adopt the Agreement and the transactions contemplated herebyshall take all reasonable lawful action to solicit such approval by its stockholders; provided that nothing in this Agreement shall prevent the CBTC Hawthorne Board may fail to make such recommendationfrom withholding, withdrawing, amending or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such modifying its recommendation (an “Adverse Recommendation Change”), if the CBTC Hawthorne Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faithdetermines, after consultation with its financial advisors and outside counsel, that the failure to take such action would breach or would reasonably be reasonably likely expected to constitute result in a breach of the their fiduciary duties of to the members of the CBTC Board Hawthorne stockholders under applicable law.
(b) Parent agrees to take, in accordance with applicable law and the Parent Articles and Bylaws, all action necessary to convene as soon as reasonably practicable a meeting of its shareholders to consider and vote upon the approval of the issuance of the Parent Common Stock in the Merger and any other matters required to be approved by Parent’s stockholders for consummation of the Transaction (including any adjournment or postponement, the “Parent Meeting”). The Parent Board shall at all times prior to and during such meeting recommend such approval and shall take all reasonable lawful action to solicit such approval by its stockholders; provided that nothing in this Agreement shall prevent the Parent Board from withholding, withdrawing, amending or modifying its recommendation if the Parent Board determines, after consultation with its outside counsel, that the failure to take such action would breach or would reasonably be expected to result in a breach of their fiduciary duties to the Parent stockholders under applicable law.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take(a) As soon as reasonably practicable following the date hereof, Sandx xxxl take all action necessary in accordance with applicable law the Exchange Act, the laws of the State of Michigan and the CBTC Sandy's Articles of Incorporation and the CBTC BylawsBylaws to call, all action necessary to give notice of, and convene an appropriate a meeting of its shareholders Sandx xxxreholders (the "Meeting") to consider and vote upon the approval and adoption of this Agreement and the Plan, and for such other purposes as Sandx xxx deem xxxessary or desirable. As of the date of this Agreement, the Board of Directors of Sandx xxx determined, based in part upon the financial analysis performed by its financial advisors, that the Merger is advisable and in the best interest of the shareholders of Sandx xxx, subject to their fiduciary duties, shall recommend that Sandy's shareholders vote to approve and adopt this Agreement and the Plan and any other matters required to be approved by CBTC’s submitted to Sandy's shareholders for consummation of the Merger (including any adjournment or postponementin connection therewith. Sandx xxxll use reasonable efforts to solicit and secure from its shareholders such approval and adoption, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail subject to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members directors of Sandx, xxich efforts shall include without limitation diligently soliciting shareholder proxies therefor and advising ADP Mergerco and ADP upon request from time to time as to the status of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to shareholder vote then tabulated. Nothing in this Section 7.02 shall be reduced to three (3) business days following in any way bind or obligate any officers or directors of Sandx xx act in any way in their capacities as shareholders of Sandx. Xhe Meeting will take place as soon after the delivery of such new Notice of Recommendation Change); date hereof as permitted under applicable law and as is reasonably practicable.
(b) after providing As promptly as reasonably practicable following the execution of this Agreement, ADP and Sandx xxxll file with the SEC a registration statement on Form S-4 (the "Registration Statement") covering the issuance and delivery of the ADP Common Stock to the shareholders of Sandx xxx containing preliminary proxy materials which comply with the requirements of the Exchange Act with respect to the transactions contemplated hereby and will use their best efforts to cause such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested Registration Statement to be declared effective and such preliminary proxy materials to be cleared by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments SEC. Sandx xxx ADP will cooperate fully in the terms preparation and conditions filing of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose Registration Statement and such preliminary proxy materials and any such adjustments); amendments and supplements thereto.
(c) Promptly after the CBTC BoardRegistration Statement (including the definitive proxy statement contained therein (the "Merger Proxy Statement")) becomes effective, following such five (5) business day period, determines in good faith, after consultation with Sandx xxxll cause the Merger Proxy Statement to be mailed to its financial advisors and outside counsel, that the failure stockholders to take such action would be reasonably likely to constitute a breach solicit their approval of the fiduciary duties of transactions contemplated herein and therein. Sandx xxxll not use any proxy material in connection with the members of the CBTC Board under applicable lawMeeting without ADP's prior approval.
Appears in 1 contract
Samples: Merger Agreement (Sandy Corp)
Shareholder Approval. CBTC agrees (1) Notwithstanding any other provision of this Agreement, the Corporation shall not issue any Equity Securities pursuant to takeany Issuance if:
(a) the Gold Fields Group is entitled to exercise Anti-Dilution Rights in respect of such Issuance; and
(b) under applicable Laws, in accordance with applicable law and such issuance of Equity Securities to the CBTC Articles and Gold Fields Group pursuant to the CBTC Bylaws, all action Anti-Dilution Rights must first receive the approval of the shareholders of the Corporation ("Shareholder Approval"); unless such Shareholder Approval has been obtained or the Gold Fields Group elects to acquire Equity Securities as contemplated by Section 2.04(3) to the extent necessary to put the Gold Fields Group in the same position immediately following such Issuance as it would have been if it had acquired Equity Securities pursuant to such Anti-Dilution Rights. For the purposes of the foregoing, Shareholder Approval shall be deemed to be required if Gold Fields considers, acting reasonably, on the advice of counsel and in consultation with the Corporation, that Shareholder Approval is required to enable the Gold Fields Group to exercise the Anti-Dilution Rights.
(2) In the event that Shareholder Approval is required in connection with any Issuance pursuant to the Anti-Dilution Rights, the Corporation and Gold Fields shall cooperate in seeking and use their respective reasonable commercial efforts to obtain such Shareholder Approval and, without limiting the generality of the foregoing, the Corporation shall, as soon as is reasonably practicable, convene an appropriate and hold a special meeting of its shareholders to consider and vote upon (the approval "Meeting") for the purpose of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponementobtaining such Shareholder Approval and, in connection therewith, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: Corporation shall:
(a) prior prepare, file and distribute to making an Adverse Recommendation Changeits shareholders in accordance with all applicable Laws a management information circular, together with any other documents required by applicable Laws in connection with obtaining such Shareholder Approval, and give Gold Fields the opportunity to review and comment on all such documents (all of which documents shall be reasonably satisfactory to Gold Fields before they are filed or distributed to shareholders);
(b) in a timely and expeditious manner, prepare, file and distribute to its shareholders any mutually agreed (or as otherwise required by applicable Laws) amendments or supplements to such management information circular in accordance with all applicable Laws (which amendments or supplements shall be reasonably satisfactory to Gold Fields before they are filed or distributed to shareholders);
(c) solicit proxies to be voted at the Meeting in favour of the Shareholder Approval;
(d) allow representatives of Gold Fields to attend the IAMGOLD Meeting; and
(e) conduct the Meeting in accordance with the Canada Business Corporations Act, the CBTC Board shall provide written notice to United (a “Notice by-laws of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms Corporation and conditions of any as otherwise required by applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three Laws.
(3) business days following In the delivery event that Shareholder Approval is required in connection with any proposed issuance of Equity Securities pursuant to the Anti-Dilution Rights and such Shareholder Approval has not been obtained, the Gold Fields Group may, at its sole option, upon prior notice to the Corporation by Gold Fields, elect to purchase Equity Securities in the secondary market subsequent to the completion of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during issuance to the subsequent five (5) business day period extent necessary to make such adjustments put the Gold Fields Group in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, same position immediately following such five (5) business day period, determines in good faith, after consultation with issuance as it would have been if it had exercised its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawAnti-Dilution Rights.
Appears in 1 contract
Samples: Purchase Agreement (Iamgold Corp)
Shareholder Approval. CBTC agrees to takeFollowing the Closing Date, in accordance with applicable law and at the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation written request of the Merger (including any adjournment or postponement, the “CBTC Meeting”)Investor, as promptly as practicable after (and in any event within sixty (60) Business Days following the Registration request), the Company shall establish a record date for and prepare and file with the SEC a proxy statement (the “Proxy Statement”) that includes a proposal for approval by the holders of Common Stock of the issuance of Common Stock upon conversion of the Series A Preferred Stock of the Company issued to the Investor pursuant to this Agreement as required under the listing rules of the Nasdaq Stock Market (and any successor thereto and any other trading market on which the Common Stock is listed)(the “Shareholder Approval”) at a special meeting of the shareholders of the Company (the “Company Shareholder Meeting”). Subject to the directors’ fiduciary duties, the Proxy Statement is declared effectiveshall include the recommendation from the Board of Directors that the shareholders vote in favor of the Shareholder Approval. The CBTC Board Company shall recommend that use reasonable best efforts to solicit from the CBTC shareholders approve proxies in favor of the Shareholder Approval and adopt to obtain the Agreement Shareholder Approval. Pxxxxxxxx agrees to furnish to the Company all information concerning Purchaser and its Affiliates as the Company may reasonably request in connection with the preparation and filing of the Proxy Statement and the transactions contemplated herebyCompany Shareholder Meeting. The Company shall, as promptly as practicable following the earlier of (i) date on which the SEC confirms that it has no further comments on the Proxy Statement, or (ii) ten calendars days following the filing of a preliminary proxy statement if the Company receives no comments from the SEC during such ten day period, take all action reasonably required, including under the Company’s Articles of Organization and Bylaws and the applicable rules of the Nasdaq Stock Market, to, as soon as reasonably practicable thereafter, duly call, convene and hold the Company Shareholder Meeting. None of the Shares will be entitled to vote in connection with the Shareholder Approval to the extent Nasdaq rules so provide; provided that for the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to Unitedavoidance of doubt, any such recommendation (an “Adverse Recommendation Change”), if shares of Common Stock owned by the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) Investor prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 Closing Date shall be reduced entitled to three (3) business days following the delivery of vote on such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawmatter.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate AMNB shall call a meeting of its shareholders to consider and vote upon (the approval of this Agreement and any other matters required “AMNB Meeting,”) to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), held as promptly soon as reasonably practicable after the Registration Statement is declared effective, for the purpose of obtaining (a) the Requisite AMNB Vote and (b) if so desired and mutually agreed, a vote upon other matters of the type customarily brought before a meeting of shareholders in connection with the approval of a merger agreement or the transactions contemplated thereby, and AMNB shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable after the date of this Agreement. The CBTC AMNB and its Board of Directors shall recommend use its reasonable best efforts to obtain from the shareholders of AMNB, the Requisite AMNB Vote, including by communicating to the shareholders of AMNB its recommendation (and including such recommendation in the Proxy Statement/Prospectus) that the CBTC shareholders of AMNB adopt and approve and adopt the this Agreement and the transactions contemplated hereby; provided that hereby (the CBTC “AMNB Board may Recommendation”). AMNB and its Board of Directors shall not (i) withhold, withdraw, modify or qualify in a manner adverse to Buyer, the AMNB Board Recommendation, (ii) fail to make such the AMNB Board Recommendation in the Proxy Statement/Prospectus, or otherwise submit this Agreement to its shareholders for adoption and approval without recommendation, (iii) adopt, approve, agree to, accept, recommend or changeendorse an Acquisition Proposal or publicly announce an intention to adopt, withdrawapprove, qualify recommend or modifyendorse an Acquisition Proposal, (iv) fail to publicly and without qualification (A) recommend against any Acquisition Proposal or (B) reaffirm the AMNB Board Recommendation within ten (10) business days (or such fewer number of days as remains prior to the AMNB Meeting, as applicable) after an Acquisition Proposal is made public or any request by Buyer to do so, (v) take any action, or make any public statement, filing or release inconsistent with the AMNB Board Recommendation or (vi) publicly propose to changedo any of the foregoing (any of the foregoing, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”). Notwithstanding anything in this Agreement to the contrary, if (x) after the CBTC date hereof, AMNB receives a Superior Proposal and (y) the Board hasof Directors of AMNB, after having consulted consulting with its financial advisor outside counsel and, with respect to financial matters and having consulted with and considered the advice of matters, its outside legal counselfinancial advisors, determined determines in good faith that the failure to make an Adverse Recommendation Change it would nevertheless be reasonably likely to constitute be a breach violation of its fiduciary duties under applicable law to make or continue to make the AMNB Board Recommendation, AMNB’s Board of Directors may, prior to the receipt of the fiduciary duties Requisite AMNB Vote, (A) submit this Agreement to AMNB shareholders without recommendation (although the resolutions approving this Agreement as of the members date hereof may not be rescinded or amended), in which event AMNB’s Board of Directors may communicate the basis for its lack of a recommendation to its shareholders in the Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent required by law, or (B) terminate this Agreement pursuant to Section 8.1(g) and enter into an Acquisition Agreement with respect to a Superior Proposal subject to compliance with Section 8.2(b)(ii); provided, that AMNB’s Board of Directors may not take any actions under this sentence unless it (I) has complied in all material respects with Section 6.11, (II) gives Buyer at least five (5) business days’ prior written notice of its intention to take such action and a reasonable description of the CBTC Board under applicable law; provided that: event or circumstances giving rise to its determination to take such action (a) prior to making an Adverse Recommendation Change, including the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any latest material terms and conditions and the identity of the third party in any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if or any amendment or modification thereof, or describe in reasonable detail such other event or circumstances, including the information under Section 6.11(b)) and (III) at the end of such notice period, takes into account any amendment or modification to this Agreement proposed by Bxxxx and, after consulting with its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that such Superior Proposal remains a Superior Proposal and it would nevertheless be reasonably likely to be a violation of its fiduciary duties under applicable (it being understood that any law to make or continue to make the AMNB Board Recommendation. Any material amendment to any material term Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of such Superior Proposal shall this Section 6.3 and will require a new Notice of Recommendation Changenotice period as referred to in this Section 6.3, except that, in such case, that the notice period shall be three (3) business days rather than the five (5) business day notice period referred to otherwise contemplated by the preceding sentence. AMNB shall adjourn or postpone the AMNB Meeting if, as of the time for which such meeting is originally scheduled there are insufficient shares of AMNB Common Stock represented (either in this Section 7.02 shall be reduced to three (3person or by proxy) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach quorum necessary to conduct the business of such meeting. Notwithstanding anything to the fiduciary duties contrary herein, unless this Agreement has been terminated in accordance with its terms, the AMNB Meeting shall be convened and this Agreement shall be submitted to the shareholders of AMNB at the members AMNB Meeting, and nothing contained herein shall be deemed to relieve AMNB of the CBTC Board under applicable lawsuch obligation.
Appears in 1 contract
Shareholder Approval. CBTC agrees to (a) Following the execution of this Agreement, OFSI shall take, in accordance with applicable law and the CBTC its Articles of Incorporation and the CBTC Bylaws, all action necessary to convene an appropriate a meeting of its shareholders as promptly as practicable (and in any event within ninety (90) days of the date hereof) to consider and vote upon the approval adoption of this Agreement and approval of the transactions contemplated hereby (including the Merger) and any other matter required to be approved by the shareholders of OFSI in order to consummate the Merger and the transactions contemplated hereby (including any adjournment or postponement thereof, the “Shareholder Meeting”).
(b) Subject to Section 7.5 hereof, OFSI shall prepare an appropriate proxy statement and other proxy solicitation materials (the “Proxy Statement”), which shall be subject to review and comment by F&M, and OFSI shall use its reasonable best efforts to obtain the requisite vote of OFSI’s shareholders to consummate the Merger and the other transactions contemplated hereby, and shall ensure that the Shareholder Meeting is called, noticed, convened, held and conducted, and that all proxies solicited by OFSI in connection with the Shareholder Meeting are solicited in compliance with the Indiana Business Corporation Law, the Articles of Incorporation and Bylaws of OFSI, and all other applicable legal requirements. OFSI shall keep F&M updated with respect to the proxy solicitation results in connection with the Shareholder Meeting as reasonably requested by F&M.
(c) Subject to Section 7.5 hereof, OFSI’s Board of Directors shall recommend that OFSI’s shareholders vote to adopt this Agreement and approve the transactions contemplated hereby (including the Merger) and any other matters required to be approved by CBTCOFSI’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that .
(d) Subject to Section 7.5 hereof, OFSI and the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach Trustee of the fiduciary duties ESOP shall provide each participant or beneficiary in the ESOP with the opportunity to confidentially provide the Trustee of the members ESOP with written directions as to the manner in which the shares of OFSI Common Stock allocated to the account of such participant or beneficiary under the ESOP should be voted by the Trustee at the Shareholder Meeting, as required by the terms of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”ESOP and Section 409(e) of its intent the Internal Revenue Code. OFSI and the Trustee of the ESOP shall distribute an information statement (which will be substantially similar to announce an Adverse Recommendation Change on the fifth (5thProxy Statement in form and content) business day following delivery to each participant in the ESOP in advance of such notice, which notice shall specify any material terms the Shareholders Meeting and conditions of any applicable Superior Proposal (and include a copy thereof otherwise comply with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if requirements imposed by applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawDOL or IRS guidance regarding pass-through voting for ESOPs.
Appears in 1 contract
Shareholder Approval. CBTC agrees If required by the applicable NASD Market Place Rules and/or Nasdaq’s corporate governance rules, the Company and Subscriber agree that until the Company either obtains shareholder approval of the issuance of the Securities, or an exemption from NASDAQ’s corporate governance rules as they may apply to takethe Shares and Warrants, and an opinion of counsel reasonably acceptable to Subscriber that the issuance of the Shares and Warrants will not violate NASDAQ’s corporate governance rules nor may result in accordance a delisting of the Company’s common stock from the SmallCap (the “Approval”), each Subscriber may not receive any Shares or Warrants. If the Approval is required by the applicable NASD Market Place Rules, and or Nasdaq’s corporate governance rules, the Company covenants to use its best reasonable efforts to obtain the Approval to allow the issuance of the Shares and Warrants. If the Approval is required by the applicable NASD Market Place Rules and/or the Nasdaq’s corporate governance rules, the Company further covenants to file the preliminary proxy statement relating to the Approval with the Commission on or before thirty (30) days after the Closing Date (“Proxy Filing Date”). If the Approval is required by the applicable law and NASD Market Place Rules and/or the CBTC Articles and Nasdaq’s corporate governance rules, the CBTC BylawsCompany further covenants to use its best reasonable efforts to obtain the Approval not later than the sooner of ninety (90) days from the Closing Date (“Approval Date”). If the Approval is required by the applicable NASD Market Place Rules and/or Nasdaq’s corporate governance rules, all action necessary the Company’s failure to (i) file the proxy on or before the Proxy Filing Date; or (ii) the Company’s failure to convene an appropriate a meeting of its or shareholders to consider with a quorum present and vote upon the approval Approval within ninety (90) days, or in the case of this Agreement an SEC review, one hundred and twenty-five (125) days after the Closing Date; or (iii) the Company’s failure to obtain the Approval on or before the Approval Date (any other matters required to be approved by CBTC’s shareholders for consummation of the Merger preceding being an “Approval Default”) shall be deemed a rejection (including any adjournment or postponement, the “CBTC MeetingRejection”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement ) and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board Company shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery immediately notify each Subscriber of such noticeApproval Default; provided, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood however that any amendment to any material term of Subscriber may waive such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, Rejection During the five ten (5) business day period referred to in this Section 7.02 shall be reduced to three (310) business days following its receipt of notification from the delivery of Company that such new Notice of Recommendation Change); (b) after providing Approval Default has occurred, in which case the Company shall remain obligated to such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) Subscriber to use its best reasonable efforts to file the proxy and provide United reasonable opportunity during obtain the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement Approval as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawset forth above.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take(a) As soon as practical after the date hereof, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, Company shall take all action necessary under the Company Constituent Documents and all applicable Legal Requirements to convene an appropriate submit this Agreement, the Merger and the Company Charter Amendment to the shareholders of the Company for approval either at a meeting of the Company Shareholders or via written shareholder consent. The Company will prepare and distribute to the Company shareholders in connection with the solicitation of the Required Company Shareholder Approval an information statement in compliance with all applicable Legal Requirements and the Company Constituent Documents (the “Company Information Statement”) on the date of execution of this Agreement. The Company Information Statement shall include appropriate disclosure regarding Parent and the Parent Common Stock. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party, or its counsel, may be required or appropriate for inclusion in the Company Information Statement, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other’s counsel and auditors in the preparation of the Company Information Statement. The Company will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to the Effective Time either the Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Company Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable Legal Requirements. The Company shall (i) solicit from shareholders of the Company in compliance with applicable Legal Requirements and the Company Constituent Documents consents to consider approve this Agreement, the Merger and vote upon the Company Charter Amendment and (ii) use its commercially reasonable efforts to obtain the Required Company Shareholder Approval and the requisite approval of the Company Charter Amendment by the Company Shareholders as soon as reasonably possible following the execution of this Agreement and any other matters required to be approved by CBTCAgreement.
(b) The board of directors of the Company unanimously recommended that the Company’s shareholders for consummation vote to approve this Agreement, the Merger and the Company Charter Amendment (the “Recommendation”). The Company Information Statement shall include the Recommendation. Neither the board of directors of the Merger (including Company nor any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board committee thereof shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify amend or modify, or publicly propose or resolve to change, withdraw, qualify amend or modify, in a manner that is adverse to UnitedParent, the Recommendation. For purposes of this Agreement, the Recommendation shall be deemed to have been modified in a manner adverse to Parent if such Recommendation shall no longer be unanimous.
(c) If applicable, the Company shall promptly submit for approval by the Company’s shareholders by the requisite vote (and in a manner satisfactory to Parent) any payments or benefits that Parent reasonably determines may constitute a “parachute payment” pursuant to Section 280G of the Code, such recommendation (an that all such payments and benefits shall not be deemed to be “Adverse Recommendation Change”)parachute payments” pursuant to Section 280G of the Code or shall be exempt from such treatment under such Section 280G, if and deliver to Parent evidence satisfactory to Parent that a vote of the CBTC Board hasCompany’s shareholders was received in conformance with Section 280G of the Code and the regulations thereunder, after having consulted with its financial advisor or that such requisite shareholder approval has not been obtained with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined any payment or benefit that the failure to make an Adverse Recommendation Change would may be reasonably likely deemed to constitute a breach “parachute payment” within the meaning of Section 280G of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangeCode and as a consequence, the CBTC Board shall provide written notice to United (a that such “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United parachute payment” shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawmade or provided.
Appears in 1 contract
Samples: Merger Agreement (Volcano CORP)
Shareholder Approval. CBTC agrees (a) The Board shall submit this Agreement to takea vote by the Shareholders, shall recommend that the Shareholders vote to approve this Agreement and the transactions contemplated hereby, and shall take all actions necessary in accordance with applicable law the Act and the CBTC Articles Company’s articles of incorporation and the CBTC Bylawsbylaws to duly call, all action necessary give notice (in form and substance reasonably satisfactory to Parent) of, convene an appropriate and hold a meeting of its shareholders the Shareholders (or deliver a written consent in lieu thereof) as promptly as practicable after the date hereof, and in no event later than forty‑five (45) days after the date hereof (the “Shareholder Approval Deadline”), to consider and vote upon the adoption and approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of Agreement, the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the other transactions contemplated hereby; provided that the CBTC Board date of such meeting of the Shareholders may fail be adjourned, recessed or delayed for a reasonable period (provided, that without the prior written consent of Parent, each such adjournment, recess or delay shall be for a period not to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation exceed ten (an “Adverse Recommendation Change”10) days), if as of the CBTC Board hastime for which such meeting is scheduled, after having consulted with its financial advisor with respect the Company reasonably believes there are insufficient Common Shares of any class represented (either in person or by proxy) and voting to financial matters and having consulted with and considered obtain the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely Requisite Shareholder Approval or to constitute a breach quorum necessary to conduct the business of the fiduciary duties Company’s shareholders at such meeting and the Company shall not otherwise postpone, recess or adjourn such meeting except to the extent required by Law. Subject to Section 5.5(f), the Board shall use its commercially reasonable efforts to obtain the Requisite Shareholder Approval. In the event that subsequent to the date of this Agreement, the members Board effects a Change of Recommendation, the CBTC Board under applicable law; provided that: (a) Company nevertheless shall continue to submit this Agreement for approval at the Shareholder meeting unless this Agreement shall have been terminated in accordance with its terms prior to making an Adverse Recommendation Changesuch meeting.
(b) In connection with the foregoing, the CBTC Board Company shall provide written notice prepare and deliver to United each Shareholder of record an information statement regarding this Agreement and the transactions contemplated hereby (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any information statement and all material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such casedelivered contemporaneously therewith, the “Shareholder Materials”). The Company shall use commercially reasonable efforts to mail the Shareholder Materials to each Shareholder not later than five (5) business day period referred Business Days after the date hereof. The Company and Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the preparation of the Shareholder Materials. The Company agrees that the Shareholder Materials will contain all material information regarding this Agreement and the transactions contemplated hereby that are reasonably necessary for the Shareholders to vote on the same on an informed basis and will include the Company Recommendation. The Company and Parent agree, each as to itself and its Subsidiaries, that none of the information supplied by it or any of their respective Subsidiaries for inclusion or incorporation by reference in this the Shareholder Materials will, at the date of mailing to the Shareholders or, if applicable, at the time of the shareholders meeting contemplated in Section 7.02 shall 5.14(a), contain any untrue statement of a material fact or omit to state any material fact required to be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate stated therein or necessary in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period order to make such adjustments the statements therein, in light of the terms and conditions circumstances under which they were made, not misleading.
(c) The Company shall not make or provide for any payment to any “disqualified individual” with respect to the AGF Entities (within the meaning of this Agreement as Section 280G(c) of the Code) who could otherwise receive any payment or benefits that would enable constitute a “parachute payment” (within the CBTC Board to proceed without an Adverse Recommendation Change meaning of Section 280G(b)(2)(A) of the Code) (it being understood the “280G Benefits”) so 66 that United all remaining payments or benefits, if any, shall not be required deemed to propose any such adjustments); and be “excess parachute payments” (c) within the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach meaning of Section 280G of the fiduciary duties Code).
(d) The Company shall provide Parent and legal counsel to Parent with a reasonable opportunity to review and comment on drafts of the members of Shareholder Materials prior to mailing such documents to the CBTC Board under applicable lawShareholders. The Company shall include in the Shareholder Materials all comments reasonably and promptly proposed by Parent or its legal counsel and agrees that all information relating to Parent and its Subsidiaries included in the Shareholder Materials shall be in form and content satisfactory to Parent, acting reasonably.
Appears in 1 contract
Samples: Merger Agreement (Supervalu Inc)
Shareholder Approval. CBTC agrees to take, (a) Unless this Agreement has been terminated in accordance with applicable law Article VII, Seller shall use commercially reasonable efforts to obtain the final approval of the UKLA to the Circular and to post the Circular (containing a notice convening an extraordinary general meeting to consider the resolutions necessary for the Seller Shareholder Approval) to its shareholders as soon as reasonably practicable following the date of this Agreement. Each of Buyer and Seller shall furnish all information concerning it and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting holders of its shareholders to consider and vote upon capital stock as the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation may reasonably request in connection with the preparation of the Merger (including any adjournment or postponement, the “CBTC Meeting”)Circular. Seller and Buyer shall, as promptly as practicable after receipt thereof, provide the Registration Statement is declared effectiveother party copies of any written comments and advise the other party of any oral comments, with respect to the Circular received from the UKLA. The CBTC Board Seller shall recommend that provide Buyer with a reasonable opportunity to review and comment on any amendment or supplement to the CBTC shareholders approve Circular prior to filing such with the UKLA and adopt shall consider all comments proposed by the Buyer in good faith. Prior to the filing or mailing of any amendment or supplement to the Circular or responding to any comments of the UKLA with respect thereto, Seller (i) shall provide Buyer an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Buyer.
(b) Unless this Agreement has been terminated in accordance with Article VII, upon receiving the final approval of the Circular from the UKLA, Seller shall, as soon as reasonably practicable following the date of this Agreement, call, give notice of, convene and hold a meeting of the holders of the Seller Shares (the “Seller Shareholders’ Meeting”) for the purpose of seeking the Seller Shareholder Approval. Seller shall cause its directors and the transactions contemplated hereby; provided that directors of the CBTC Board may fail Company to make such recommendation, unanimously recommend a vote for the Seller Shareholders Approval as being in the best interests of the holders of the Seller Shares (the “Seller Recommendation”). Seller shall cause its directors and the directors of the Company not to (i) withdraw or change, withdraw, qualify modify or modify, or publicly propose to change, withdraw, qualify withdraw or modify, in a manner that is adverse to UnitedBuyer, the Seller Recommendation or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Acquisition Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and .
(c) Each party will give prompt notice to the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, other if at any time before Closing it becomes aware that the failure Circular, an application for an order, any registration, consent, circular or approval, or any other filing under applicable Laws contains an untrue statement of a material fact or omits to take such action would state a material fact required to be reasonably likely stated therein or necessary to constitute a breach make the statements contained therein not misleading in the light of the fiduciary duties circumstances in which they are made, or that otherwise requires an amendment or supplement to the Circular, such application, registration, consent, circular, approval or filing, and the Buyer and Seller shall co-operate in the preparation of any amendment or supplement to the members of the CBTC Board under applicable lawCircular, application, registration, consent, circular, approval or filing, as required.
Appears in 1 contract
Samples: Share Purchase Agreement (Health Care Property Investors Inc)
Shareholder Approval. CBTC agrees As soon as practicable following the execution and delivery of this Agreement and the issuance of the California Permit, the Company shall give written notice of this Agreement and the proposed Merger to take, all Company shareholders and shall use commercially reasonable efforts to take all other action necessary in accordance with applicable law the California Code and the CBTC Articles its articles of incorporation and the CBTC Bylaws, all action necessary bylaws to convene an appropriate a meeting of its shareholders or secure the written consent of its shareholders with respect to consider the Company Shareholder Action before August 30, 2000. The Company shall submit this Agreement to its shareholders for adoption whether or not the Company's Board of Directors determines at any time subsequent to declaring its advisability that this Agreement is no longer advisable and vote upon recommends that the approval shareholders reject it. The Company shall consult with Parent regarding the date of any shareholder meeting with respect to the Company Shareholder Action and shall not postpone or adjourn (other than for the absence of a quorum) any such meeting, which consent shall not be unreasonably withheld. The Company shall use all commercially reasonable efforts required to solicit and obtain from shareholders of the Company proxies or written consents in favor of the Merger and this Agreement and any shall take all other matters action necessary or advisable to secure the vote or consent of shareholders of the Company required with respect to be approved by CBTC’s the Merger. The materials submitted to the shareholders for consummation of the Company in respect of the Merger shall have been subject to prior review and comment by Parent and shall include (including any adjournment or postponementa) information regarding the Company, the “CBTC Meeting”)terms of the Merger and this Agreement, as promptly as practicable after (b) the Registration Statement is declared effective. The CBTC recommendation of the Board shall recommend of Directors of the Company that the CBTC Company's shareholders approve the Merger and adopt the this Agreement and the transactions contemplated hereby; provided that hereby and approve and execute such other documents as may be required to satisfy the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach applicable requirements of the fiduciary duties Securities Act in connection with the issuance and sale of Parent Common Stock in the Merger, (c) and the conclusion of the members Board of Directors of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood Company that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement the Merger are advisable, fair and reasonable to, and in the best interests of, the shareholders of the Company and (d) such other documents as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not may be required to propose any such adjustments); and (c) satisfy the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach applicable requirements of the fiduciary duties Securities Act in connection with the issuance and sale of Parent Common Stock in the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Samples: Merger Agreement (Broadcom Corp)
Shareholder Approval. CBTC (a) Company shall as promptly as practicable prepare a proxy statement relating to the Company Shareholders Meeting (the “Proxy Statement”) that conforms with the requirements of the IBCA and applicable Law, including the requirements of any federal or state securities Law, and mail to its shareholders as promptly as reasonably practicable, but in no event later than 30 days after the date of this Agreement, the Proxy Statement and all other customary proxy or other materials for meetings such as the Company Shareholders Meeting and, to the extent required by applicable Law, as promptly as reasonably practicable prepare and distribute to Company shareholders any supplement or amendment to the Proxy Statement if any event shall occur which requires such action at any time prior to the Company Shareholders Meeting. Parent shall cooperate with Company in connection with the preparation of the Proxy Statement, including furnishing Company upon request with such information regarding Parent, Merger Sub or their respective Affiliates and the plans of such Persons for the Surviving Corporation after the Effective Time required to comply with the IBCA with respect to disclosures to shareholders. The information supplied by Parent for inclusion in the Proxy Statement or any amendment or supplement thereto shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Company shall provide Parent and its Representatives a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, prior to disseminating to the shareholders of Company, and Company shall consider any comments proposed by Parent in good faith. Parent agrees to takepromptly notify Company if at any time prior to the Company Shareholders Meeting any information provided by Parent or its Affiliates in the Proxy Statement, or any amendment thereto, becomes incorrect or incomplete in any material respect, and to provide the information needed to correct such inaccuracy or omission.
(b) Subject to Section 8.1, Company shall take all action necessary in accordance with applicable law the IBCA and the CBTC Company Articles of Incorporation and the CBTC BylawsCompany Bylaws to duly call, all action necessary to give notice of, convene an appropriate and hold a meeting of its shareholders to consider and vote upon as promptly as practicable, but in no event later than 65 days after the approval date of this Agreement Agreement, for the purpose of obtaining the Requisite Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Shareholders Meeting”), and, except in the case of a Company Adverse Recommendation Change pursuant to Section 6.9(f), shall solicit, and use its reasonable best efforts to obtain, the Requisite Shareholder Approval thereat and shall include the Company Board Recommendation in the Proxy Statement. Company agrees that its obligations pursuant to this Section 6.3(b) to convene and hold the Company Shareholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any other matters Company Takeover Proposal or by the effecting of a Company Adverse Recommendation Change.
(c) Company shall cooperate with and keep Parent informed on a current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its shareholders. Notwithstanding anything to the contrary contained in this Agreement, Company may adjourn or postpone the Company Shareholders Meeting: (i) to the extent required by applicable Law; (ii) if as of the time for which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders’ Meeting; or (iii) with the prior written consent of Parent (which shall not be unreasonably withheld, delayed or conditioned). In addition, if at any time following the dissemination of the Proxy Statement, either Company or Parent reasonably determines in good faith that the Requisite Shareholder Approval is unlikely to be approved by CBTC’s shareholders for consummation obtained at the Company Shareholders Meeting, then on a single occasion and prior to the vote contemplated having been taken, each of Company and Parent shall have the right to require a single adjournment or postponement of the Merger (including Company Shareholders Meeting; provided, that no such adjournments or postponements shall delay the Company Shareholders Meeting by more than 30 days from the originally scheduled date. During any such period of adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board Company shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail continue in all respects to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted comply with its financial advisor with respect to financial matters obligations under this Section 6.3 and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to Section 6.9. Except as set forth in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change6.3, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United Company shall not be required have any obligation to propose any such adjustments); and (c) postpone or adjourn the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawCompany Shareholders Meeting.
Appears in 1 contract
Samples: Merger Agreement (MidWestOne Financial Group, Inc.)
Shareholder Approval. CBTC (a) The Holding Company agrees to take, in accordance with applicable law and the CBTC its Articles of Incorporation and the CBTC Bylawsbylaws, all action necessary to convene an appropriate meeting the Special Meeting as soon as reasonably practicable following the date of its shareholders this Agreement, but in no event later than ninety (90) days following the date hereof, to consider and vote upon the approval and/or adoption of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation the Transactions. The Board of Directors of the Merger (including any adjournment or postponement, Holding Company has determined that it is in the “CBTC Meeting”), as promptly as practicable after best interest of the Registration Statement is declared effective. The CBTC Board shall Holding Company and its shareholders to recommend that the CBTC shareholders approve and adopt the this Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendationTransactions and, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board hasunless, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of outside counsel and its outside legal counselfinancial adviser, it has determined in good faith that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute a breach inconsistent with the duties of directors under Maryland law, will recommend approval of the fiduciary duties Agreement and the Transactions to the shareholders of the members of the CBTC Board under applicable law; Holding Company. Except as provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced 7.02, the Holding Company’s Board of Directors will not adversely change its recommendation to three the shareholders of the Holding Company and will take any other action required to the extent consistent with the duties of directors under Georgia law, to permit and cause consummation of the Transactions.
(3b) business The Seller agrees to take, in accordance with applicable law and its Articles and bylaws, all action necessary to solicit and obtain the approval and/or adoption of this Agreement and the Transactions from the sole shareholder of Seller as soon as reasonably practicable following the date of this Agreement but in no event later than ninety (90) days following the delivery date hereof. The Board of such new Notice Directors of Recommendation Change); (b) Seller has determined that it is in the best interest of Seller and its sole shareholder to recommend that the Holding Company, as the sole shareholder of Seller, approve this Agreement and the Transactions, unless, after providing such Notice having consulted with and considered the advice of Recommendation Changeoutside counsel and its financial adviser, CBTC shall negotiate it has determined in good faith that to do so would be inconsistent with United (if requested by United) the duties of directors under Maryland law. Except as provided in this Section 7.02, Seller’s Board of Directors will not adversely change its recommendation to Seller’s sole shareholder and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be will take any other action required to propose any such adjustments); the extent consistent with the duties of directors under Maryland law, to permit and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach cause consummation of the fiduciary duties of the members of the CBTC Board under applicable lawTransactions.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Affinity Bancshares, Inc.)
Shareholder Approval. CBTC agrees 7.4.1. Subject to takethe effectiveness of the Form S-4, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate Old Forge shall call a meeting of its shareholders to consider and vote upon (the approval of this Agreement and any other matters required "OLD FORGE SHAREHOLDER MEETING") to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), held as promptly soon as reasonably practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that date hereof for the CBTC shareholders approve and adopt purpose of obtaining the Agreement and requisite shareholder approval required in connection with the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendationMerger, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in substantially the terms and conditions set forth in this Agreement, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. The Old Forge Board shall use its reasonable best efforts to obtain from its shareholders the shareholder vote approving the Merger, on substantially the terms and conditions set forth in this Agreement, required to consummate the transactions contemplated by this Agreement. The Old Forge Board shall, subject to the provisions of Section 7.9.3, affirmatively recommend that the Old Forge shareholders vote in favor of and adopt this Agreement as would enable (the CBTC "APPROVAL RECOMMENDATION"), and submit this Agreement to its shareholders at the Old Forge Shareholder Meeting. The Old Forge Board has adopted resolutions approving the Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to proceed without an Adverse Recommendation Change Old Forge's shareholders for their consideration.
7.4.2. Each of Penseco and Old Forge shall, and shall cause its respective Subsidiaries to, use their reasonable best efforts (it being understood i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements that United shall not may be imposed on such party or its Subsidiaries with respect to the Merger and, subject to the conditions set forth in Article 8 hereof, to consummate the transactions contemplated by this Agreement, and (ii) to obtain (and to cooperate with the other party to obtain) any material consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to propose be obtained by Old Forge or Penseco or any such adjustments); of their respective Subsidiaries in connection with the Merger and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawother transactions contemplated by this Agreement.
Appears in 1 contract
Shareholder Approval. CBTC agrees The Company Board will submit to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval principal terms of this Agreement and any other matters required to be approved or adopted by CBTC’s shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, the Merger Company will take, in accordance with the CCC, other applicable law, applicable NASDAQ National Market System rules, the rules of any other relevant exchange and its Constituent Documents, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC "Company Meeting”"), as promptly as practicable after practicable, to consider and vote upon approval of the Registration Statement is declared effectiveprincipal terms of this Agreement as well as any other such related matters. The CBTC Company Board shall recommend will use all reasonable best efforts to obtain from its shareholders a vote approving the principal terms of this Agreement, including providing an unqualified recommendation that its shareholders vote in favor of the Merger. The Company Board will not impose a requirement that the CBTC shareholders approve holders of more than a majority of the outstanding shares of the Company Common Stock entitled to vote on the Merger and adopt the principal terms of the Agreement approve the Merger and the transactions contemplated herebyprincipal terms of the Agreement. If the Company Board, after consultation with (and based on the advice of) outside counsel, determines in good faith that, because of the receipt by the Company of an Acquisition Proposal that the Company Board concludes in good faith constitutes a Superior Proposal, it would more likely than not result in a violation of its fiduciary duties under applicable law to continue to recommend the approval of the principal terms of this Agreement, then, in submitting the principal terms of this Agreement to the Company Meeting, the Company Board may submit principal terms of this Agreement to its shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Company Board may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law; provided that the CBTC Company Board may fail not take any actions under this sentence until after giving Acquiror at least five business days to make respond to such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Acquisition Proposal (and include a copy thereof with all accompanying documentationafter giving Acquiror notice of the latest material terms, if conditions and identity of the third party in writing), the Acquisition Proposal) and identify the Person making such Superior Proposal, if applicable (it being understood that then taking into account any amendment or modification to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawproposed by Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Vib Corp)
Shareholder Approval. CBTC agrees (a) Prior to takethe Effective Time and at the earliest practicable date following the date hereof, but in no event later than three business days after the date hereof, the Company will solicit written consents from its shareholders seeking approval of this Agreement, the Merger and related matters. In soliciting such written consent, the Board of Directors of the Company will recommend to the shareholders of the Company that they approve this Agreement and the Merger and the Company and the Board of Directors shall use their best efforts to obtain the approval of the shareholders of the Company entitled to vote on or consent to this Agreement and the Merger in accordance with applicable law the CGCL and the CBTC Company's Articles of Incorporation. In soliciting the written consent of shareholders, the Company will deliver to each shareholder as soon as reasonably practicable an information statement (the "Information Statement") substantially the form delivered to Parent on the date hereof. The Information Statement prepared by the Company in the form approved by Parent shall be in such form and contain such information that is intended to permit compliance by the Parent with the requirements of Regulation D under the Securities Act in connection with the issuance of shares of Parent Common Stock in the Merger.
(b) Within three business days after the execution of this Agreement, the Company will distribute the Information Statement to the shareholders of the Company. As promptly as practicable after the date of this Agreement, the Company and the CBTC BylawsParent will prepare and file any filings required under the Exchange Act, the Securities Act or any other Federal, foreign or state securities or blue sky laws relating to the Merger and the transactions contemplated by this Agreement (the "Filings"). The Information Statement and the Filings will comply in all action necessary material respects with all applicable requirements of law. Whenever any event occurs which is required to convene be set forth in an amendment or supplement to the Information Statement or any Filing, the Company or Parent, as the case may be, will promptly inform the other of such occurrence and cooperate in making any appropriate meeting amendment or supplement, and/or mailing to shareholders of its shareholders to consider the Company, such amendment or supplement. The Information Statement will include the recommendation of the Board of Directors of the Company in favor of adoption and vote upon the approval of this Agreement and approval of the Merger.
(c) The Principal Shareholders each severally agree to vote their shares of the capital stock of the Company for the approval and adoption of this Agreement and the Merger. The Principal Shareholders each severally agree that they (i) shall not dispose of or in any other matters required way encumber said shares prior to be approved by CBTC’s shareholders for the consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that , (ii) shall take no action inconsistent with the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters approval and having consulted with and considered the advice consummation of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); said transactions and (ciii) at the CBTC BoardClosing shall surrender the stock certificates representing all shares of Company Stock owned by them, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawduly endorsed for transfer.
Appears in 1 contract
Samples: Merger Agreement (Lycos Inc)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate (a) Parent will (i) call a meeting of its shareholders (the "Meeting") for the purpose of voting upon adoption and authorization of the Merger and approve the issuance of the Parent Common Stock and, if necessary, to consider and vote approve an amendment to the Parent Stock Option Plan to increase the number of shares of Parent Common Stock reserved for issuance upon exercise of stock options granted thereunder to the Shareholders of the Company (collectively, the "Matters"), (ii) hold the Meeting as soon as practicable following the date of this Agreement, (iii) recommend to its shareholders the approval of each of the Matters through its Board of Directors, and (iv) use its best efforts to obtain the necessary adoption and authorization of this Agreement by the shareholders of Parent.
(b) Parent will (i) as soon as practicable following the date of this Agreement, prepare in correct and appropriate form and file with the SEC a preliminary Proxy Statement and (ii) use its reasonable best efforts to respond to any other matters required comments of the SEC or its staff and to cause the Proxy Statement to be approved cleared by CBTC’s shareholders for consummation the SEC. The Company and the Shareholders shall supply to Parent on a timely basis in connection with the preparation of the Merger (including Proxy Statement all financial and other information necessary to be included therein with respect to the Company and the Shareholders. Parent will notify the Company of the receipt of any adjournment comments from the SEC or postponementits staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply the Company with copies of all correspondence between Parent or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. Parent shall give the Company and its counsel the opportunity to review the Proxy Statement prior to being filed with the SEC and shall give the Company and its counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the “CBTC Meeting”)SEC. Each of Parent and the Company agrees to use its reasonable best efforts, as after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC. As promptly as practicable after the Registration Proxy Statement has been cleared by the SEC, Parent shall mail the Proxy Statement to the stockholders of Parent.
(c) Each party agrees to notify the other of, and to correct, any information contained in the Proxy Statement furnished by such party to the other for inclusion therein, which information shall be, at the time of furnishing, or become, prior to the Meeting, false or misleading in any material respect. If at any time prior to the Meeting or any adjournment thereof there shall occur any event that should be set forth in an amendment to Proxy Statement, Parent will prepare and mail to its stockholders such an amendment or supplement.
(d) During the period from the date of this Agreement to the date of Closing, Parent will file all reports, schedules and definitive proxy statements (including the Proxy Statement) (the "Parent Filings") required to be filed by Parent with the SEC and will provide copies thereof to the Company promptly upon the filing thereof.
(e) Each Shareholder acknowledges and agrees that by signing this Agreement, he has voted all of his shares of Company Common Stock in favor of the approval of this Agreement, the Merger and all aspects of the transactions contemplated hereby, that such approval is declared effective. The CBTC Board irrevocable and cannot be rescinded and that each such Shareholder irrevocably agrees that he shall recommend vote or cause to be voted (in person or by proxy) all of his shares of Company Common Stock at each meeting in which such matters are considered and subject to a vote in favor of any such other matters that come before the CBTC shareholders approve and adopt Meeting concerning the Agreement Agreement, the Merger and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawthereby.
Appears in 1 contract
Samples: Merger Agreement (Simone Eric)
Shareholder Approval. CBTC agrees to take(a) As promptly as practicable after the Effective Date, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, Borrower shall take all action necessary under applicable Requirements of Law to call, give notice of, convene an appropriate and hold a meeting of its the shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger Borrower for the purpose of obtaining the Shareholder Approval (including the “Borrower Shareholders’ Meeting”). The Borrower will convene and hold the Borrower Shareholders’ Meeting no later than the thirtieth (30th) day following the mailing of the Proxy Statement to the Borrower’s shareholders. The Borrower shall take reasonable measures to ensure that all proxies solicited in connection with the Borrower Shareholders’ Meeting are solicited in compliance with all applicable Requirements of Law. Notwithstanding anything to the contrary contained herein, if on the date of the Borrower Shareholders’ Meeting, or a date preceding the date on which the Borrower Shareholders’ Meeting is scheduled, the Borrower reasonably believes that (i) it will not receive proxies sufficient to obtain the Shareholder Approval, whether or not a quorum would be present or (ii) it will not have sufficient shares of Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the business of the Borrower Shareholders’ Meeting, the Borrower may postpone or adjourn, or make one or more successive postponements or adjournments of, the Borrower Shareholders’ Meeting as long as the date of the Borrower Shareholders’ Meeting is not postponed or adjourned more than an aggregate of thirty (30) calendar days in connection with any adjournment postponements or postponementadjournments.
(b) As promptly as reasonably practicable after the Effective Date, the Borrower shall prepare and file with the SEC a preliminary proxy statement (as amended and supplemented, the “CBTC MeetingProxy Statement”), relating to the Borrower Shareholders’ Meeting. The Borrower shall include in the Proxy Statement the recommendation of the Board of Directors of the Borrower that the shareholders of the Borrower vote in favor of the adoption and approval of such matters as may be required to convey Shareholder Approval. The Borrower shall use its reasonable best efforts to obtain the Shareholder Approval, including using commercially reasonable best efforts to solicit proxies from the Borrower’s shareholders. The Borrower will cause the Proxy Statement to comply as to form in all material respects with the applicable requirements of the 1934 Act and the rules of the SEC and NYSE American. The Borrower shall resolve all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof and cause the Registration Proxy Statement is declared effectivein definitive form to be cleared by the SEC and mailed (if required by applicable Requirements of Law) to the Borrower’s shareholders as promptly as reasonably practicable following filing with the SEC. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail Borrower, prior to make such recommendation, or change, withdraw, qualify or modify, or publicly propose responding to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor SEC comments with respect to financial matters the Proxy Statement, will first provide the Lender and having consulted with its Representatives a reasonable opportunity to review and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing)comment thereon, and identify the Person making such Superior ProposalBorrower will give due consideration to all reasonable additions, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, deletions or changes suggested thereto by the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with Lender or its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawRepresentatives.
Appears in 1 contract
Samples: Secured Convertible Credit and Security Agreement (Armata Pharmaceuticals, Inc.)
Shareholder Approval. CBTC agrees to take(a) THOMASTON FEDERAL shall call a Shareholders' Meeting, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), held as promptly soon as reasonably practicable after the Registration Statement is declared effectiveeffective by the SEC, for the purpose of voting upon approval of this Agreement and such other related matters as it deems appropriate. The CBTC In connection with the Shareholders' Meeting, the Board of Directors of THOMASTON FEDERAL shall recommend that to its shareholders, subject to the CBTC shareholders approve conditions in such authorization and adopt recommendation by the Agreement and Board of Directors, the transactions contemplated hereby; provided that approval of the CBTC matters submitted for approval (subject to the Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board hasof Directors of THOMASTON FEDERAL, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined reasonably determining in good faith that the making of such recommendation, or the failure to make an Adverse Recommendation Change withdraw or modify its recommendation, would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC such Board of Directors to THOMASTON FEDERAL's shareholders, under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making Board of Directors and officers of THOMASTON FEDERAL shall use their reasonable efforts to obtain such Superior Proposalshareholders' approval (subject to the Board of Directors of THOMASTON FEDERAL, if applicable (it being understood that any amendment to any material term after having consulted with and considered the advice of such Superior Proposal shall require a new Notice of Recommendation Changeoutside counsel, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate reasonably determining in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take taking of such action actions would be reasonably likely to constitute a breach of the fiduciary duties of the members of such Board of Directors to the CBTC Board THOMASTON FEDERAL shareholders, under applicable law).
(b) INTERIM shall call an INTERIM Shareholders' Meeting, to be held as soon as reasonably practicable after its organization, for the purpose of voting upon approval of this Agreement and such other related matters as it deems appropriate. In connection with the INTERIM Shareholders' Meeting, the Board of Directors of INTERIM shall recommend to its shareholder, subject to the conditions in such authorization and recommendation by the Board of Directors, the approval of the matters submitted for approval, and the Board of Directors and officers of INTERIM shall use their reasonable efforts to obtain its shareholder's approval. FLAG, as sole shareholder of INTERIM, shall vote its shares of INTERIM in favor of this Agreement.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law (a) If approval of this Agreement and the CBTC Articles and Merger by the CBTC Bylawsshareholders of API is required by law, all action necessary to convene an appropriate API will, at TDS's request, duly call a special meeting of its shareholders for the purpose of voting upon this Agreement (insofar as it relates to consider the Merger), the Merger and vote upon related matters and use its reasonable best efforts duly to give notice of, convene and hold such meeting as soon as practicable following consummation of the Offer. API will, through its Board of Directors, recommend to its shareholders approval and adoption of this Agreement and approval of the Merger, except to the extent that the Board of Directors of API shall have withdrawn its approval or recommendation of this Agreement or the Merger as permitted by SECTION 6.6(b). At the shareholders' meeting, TDS and Purchaser shall cause all Series A Common Shares and Common Shares then owned by them and their subsidiaries to be voted in favor of the approval of this Agreement and the Merger. Notwithstanding the foregoing, if Purchaser or any other matters required to be approved by CBTC’s shareholders for consummation Subsidiary of TDS shall acquire at least 90% of the Merger (including any adjournment or postponementoutstanding Common Shares, the “CBTC Meeting”)parties shall, subject to Article VII, at the request of TDS, take all necessary and appropriate action to cause the Merger to become effective as promptly soon as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that consummation of the CBTC Offer without a meeting of shareholders approve and adopt in accordance with Section 253 of the DGCL.
(b) If approval of this Agreement and the transactions contemplated hereby; provided that Merger by the CBTC Board may fail shareholders of API is required by law, API will, at TDS's request, as soon as practicable following the consummation of the Offer, prepare and file a preliminary API Proxy Statement with the SEC and will use its reasonable best efforts to make such recommendationrespond to any comments of the SEC or its staff and to cause the API Proxy Statement to be mailed to API's shareholders. API will notify TDS promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the API Proxy Statement or for additional information and will supply TDS with copies of all correspondence between API or any of its representatives, on the one hand, and the SEC or changeits staff, withdrawon the other hand, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that API Proxy Statement or the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) Merger. If at any time prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions approval of this Agreement as would enable by API's shareholders there shall occur any event that should be set forth in an amendment or supplement to the CBTC Board API Proxy Statement, API will promptly notify TDS thereof and prepare and mail to proceed without its shareholders such an Adverse Recommendation Change (it being understood that United shall amendment or supplement. API will not be required mail any API Proxy Statement, or any amendment or supplement thereto, to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be which TDS reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawobjects.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided thatShareholder Approval” means: (a) prior the approval of the holders of a majority of the Company’s outstanding voting Common Stock, if and to making an Adverse Recommendation Changethe extent legally required, to amend the Company’s Certificate of Incorporation to (i) increase the number of authorized shares of Common Stock by at least the number of shares equal to the number of shares of Common Stock issuable under the Transaction Documents, or (ii) effect a reverse stock split with respect to the Common Stock, or (b) such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity) from the shareholders of the Company with respect to the transactions contemplated by this Agreement, including the issuance of all of the Conversion Shares, Commitment Shares, and Warrant Shares in excess of 19.99% of the issued and outstanding Common Stock on the Closing Date (the “Exchange Cap”). The Company shall hold a special meeting of shareholders at the earliest practicable date after the date of this Agreement for the purpose of obtaining Shareholder Approval, with the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall use its reasonable best efforts to obtain such Shareholder Approval. If the Company does not obtain Shareholder Approval at the first meeting, the CBTC Board Company shall provide written notice call a meeting as often as possible thereafter to United (seek Shareholder Approval until the Shareholder Approval is obtained. Until such approval is obtained, no Buyer shall be issued in the aggregate, upon conversion or exercise, as applicable, of August 2022 Notes or August 2022 Warrants, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a “Notice fraction, the numerator of Recommendation Change”) of its intent which is the purchase price paid by such Buyer pursuant to announce an Adverse Recommendation Change this Agreement on the fifth Closing Date and the denominator of which is the aggregate purchase price paid by the August 2022 Buyers for the August 2022 Notes that are actually issued on the Closing Date (5th) business day following delivery with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such noticeBuyer’s August 2022 Notes or August 2022 Warrants, the transferee shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. In the event that any holder of August 2022 Notes or August 2022 Warrants shall convert or exercise all of such holder’s August 2022 Notes or August 2022 Warrants into a number of shares of Common Stock which, in the aggregate, is less than such holder’s Exchange Cap Allocation, then the difference between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of August 2022 Notes and August 2022 Warrants on a pro rata basis in proportion to the aggregate principal amount of August 2022 Notes then held by each such holder. “Authorized Capital Adjustment Date” shall mean the date that the Company has effected the actions approved pursuant to Shareholder Approval, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to no later than three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, date that the failure to take such action would be reasonably likely to constitute a breach of Company has obtained the fiduciary duties of the members of the CBTC Board under applicable lawShareholder Approval.
Appears in 1 contract
Shareholder Approval. CBTC FNB agrees to take, in accordance with applicable law Law, the Articles of Incorporation and the CBTC Articles and the CBTC BylawsBylaws of FNB, all action necessary to convene an appropriate a special meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCFNB’s shareholders for in order to permit consummation of the Merger transactions contemplated hereby (including any adjournment or postponement, the “CBTC FNB Meeting”), as promptly as practicable after ) and shall take all lawful action to solicit such approval by such shareholders. FNB agrees to use commercially reasonable efforts to convene the FNB Meeting within forty-five (45) days following the time when the Registration Statement is declared becomes effective. The CBTC Board Except with the prior approval of Buyer, no other matters shall be submitted for the approval of FNB shareholders at the FNB Meeting. Except to the extent provided otherwise in Section 5.09(b), the board of directors of FNB shall at all times prior to and during the FNB Meeting recommend that approval of this Agreement by the CBTC shareholders approve of FNB and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or changeshall not withhold, withdraw, qualify or amend, modify, change or publicly propose to change, withdraw, qualify or modify, such recommendation in a manner that is adverse to United, in any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted the interests of Buyer or take any other action or make any other public statement inconsistent with and considered such recommendation. In the advice of its outside legal counselevent that there is present at such meeting, determined in person or by proxy, sufficient favorable voting power to secure the Requisite FNB Shareholder Approval, FNB will not adjourn or postpone the FNB Meeting unless FNB is advised by counsel that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute result in a breach of the fiduciary duties of FNB’s board of directors. FNB shall keep Buyer updated with respect to the members of proxy solicitation results in connection with the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if FNB Meeting as reasonably requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawBuyer.
Appears in 1 contract
Shareholder Approval. CBTC (a) The Company agrees to takethat promptly, and in all events within five (5) business days following execution of this Agreement, it will in accordance with applicable law the NJBCA and the CBTC Articles Company's Certificate of Incorporation and Bylaws (i) provide notice to its shareholders of a meeting to be held to approve this Agreement and the CBTC Bylawsconsummation of the Merger and the appointment of the Shareholder Representative, all action necessary and (ii) prepare and mail a notice (the "Shareholder Notice") to convene an appropriate every shareholder of the Company (x) that did not execute the written consent (the "Shareholder Consent") dated as of the date hereof in which the shareholders of the Company adopted and approved this Agreement, the Merger and the other transactions contemplated hereby, and (y) who would have been entitled to notice of a meeting of its shareholders to consider and vote upon such action. The Shareholder Notice shall fully comply with the requirements of the Company's Certificate of Incorporation, Bylaws and the NJBCA. Prior to mailing the Shareholder Notice, Parent will have the right to review and approve the Shareholder Notice.
(b) The Company shall duly call, give notice of, convene and hold a shareholders meeting, to be held as soon as reasonably practicable after execution of this Agreement, on a date reasonably acceptable to Parent, for the purpose of voting upon approval and adoption of this Agreement and any such other related matters required as Parent deems appropriate and shall through its Board of Directors, recommend to be approved by CBTC’s its shareholders for consummation the approval and adoption of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the this Agreement and the transactions contemplated hereby; provided that Merger. Neither the CBTC Board may fail to make such recommendation, or change, of Directors of the Company nor any committee thereof shall withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedParent, any the approval of such Board of Directors or such committee of this Agreement or the Merger or the recommendation of such Board of Directors to the Company's shareholders that they approve this Agreement and the Merger; provided, that the Board of Directors of the Company shall be permitted to (an “Adverse Recommendation Change”)i) not recommend to the Company's shareholders that they approve this Agreement or the Merger or (ii) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent, the recommendation of such Board of Directors to the Company's shareholders that they approve this Agreement and the Merger, only if the CBTC Board hasof Directors of the Company by a majority vote determines in its good faith judgment that it is necessary to do so to comply with its fiduciary duties to the Company's shareholders under applicable law, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered receiving the advice of its outside legal counsel; provided, determined further, that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to nothing contained in this Section 7.02 6.12(b) shall be reduced permit the Company's Board of Directors or any committee thereof to three (3) business days following rescind or amend the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of resolutions adopting this Agreement as would enable of the CBTC date hereof. Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its shareholders for approval at a shareholders' meeting even if the Board to proceed without an Adverse Recommendation Change (of Directors of the Company determines at any time after the date hereof that it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, is no longer advisable or recommends that the failure to take such action would be reasonably likely to constitute a breach of Company's shareholders do not approve this Agreement or the fiduciary duties of the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Shareholder Approval. CBTC agrees Shelby County shall submit this Agreement and the Merger to take, its shareholders for approval at a meeting to be called and held in accordance with applicable law and the CBTC Articles of Incorporation and the CBTC Bylaws, all action necessary By-Laws of Shelby County on a date mutually acceptable to convene an appropriate Shelby County and Blue River. Shelby County shall use its reasonable efforts to hold such meeting of shareholders no later than sixty (60) days following the date of this Agreement. In connection with such meeting of shareholders of Shelby County, (a) Shelby County shall deliver to its shareholders a proxy statement relating to consider and vote upon the approval Merger ("Proxy Statement") which shall include a copy of this Agreement and any all other matters information required to be approved provided to shareholders of Shelby County in accordance with applicable law; and (b) the Board of Directors of Shelby County shall recommend, by CBTC’s at least a majority vote, to Shelby County's shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC such shareholders approve and adopt the this Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make Merger and shall solicit proxies in favor of this Agreement from such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modifyshareholders (unless, in a manner that is adverse to Unitedthe written opinion of counsel for Shelby County, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of such Board might reasonably be found to prohibit such a recommendation, in which event the individual members of the CBTC Board under applicable law; provided that: of Directors shall nevertheless remain personally obligated to vote in favor of this Agreement and the Merger pursuant to their personal undertakings set forth elsewhere in this Agreement). Shelby County shall use its reasonable efforts to cause Trident Financial Corporation (a"Trident") prior to making an Adverse Recommendation Changeissue, no later than the CBTC Board date of the Proxy Statement, Trident's written opinion ("Fairness Opinion") stating that the Conversion Price is fair to the shareholders of Shelby County from a financial point of view. Shelby County shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include attach a copy thereof of Trident's fairness opinion to the proxy statement to be delivered to Shelby County's shareholders in connection with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term meeting of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to shareholders referenced in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law6.01.
Appears in 1 contract
Samples: Agreement of Affiliation and Merger (Blue River Bancshares Inc)
Shareholder Approval. CBTC agrees 5.4.1 The Vendor shall use its reasonable best efforts to takeobtain, as promptly as practicable, the Requisite Shareholder Approval at a special meeting of shareholders, all in accordance with the Canada Business Corporations Act and other applicable law Legal Requirements. In connection with such special meeting of shareholders, the Vendor shall provide the Disclosure Statement to its shareholders as promptly as practicable (and shall use its reasonable efforts to do so within ten days) following the Effective Date. The Purchaser agrees to cooperate with the Vendor in the preparation of the Disclosure Statement. The Vendor agrees not to distribute the Disclosure Statement until the Purchaser has had a reasonable opportunity to review and comment on the Disclosure Statement and the CBTC Articles and Disclosure Statement has been approved by the CBTC BylawsPurchaser (which approval may not be unreasonably withheld, all action necessary to convene an appropriate meeting conditioned or delayed).
5.4.2 The Vendor, acting through its Board of Directors, shall include in the Disclosure Statement the unanimous recommendation of its Board of Directors that the shareholders to consider and of the Vendor vote upon in favor of the approval adoption of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation the approval of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; by this Agreement.
5.4.3 The Vendor shall ensure that the Disclosure Statement does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United Vendor shall not be required responsible for the accuracy or completeness of any information concerning the Purchaser furnished by the Purchaser in writing for inclusion in the Disclosure Statement).
5.4.4 The Purchaser shall ensure that any information furnished by the Purchaser to propose the Vendor in writing for inclusion in the Disclosure Statement does not contain any such adjustments); and (c) untrue statement of a material fact or omit to state a material fact necessary in order to make the CBTC Boardstatements made, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach light of the fiduciary duties of the members of the CBTC Board circumstances under applicable lawwhich they were made, not misleading.
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Shareholder Approval. CBTC agrees (a) Prior to takeor contemporaneously with the execution of this Agreement, the Company has solicited and obtained or shall solicit and obtain the written consent of the Shareholders in the form of the Shareholder Written Consent, which consent shall, as provided by Washington Law and the Charter Documents, constitute the irrevocable approval of the Merger and the transactions contemplated hereby and the approval and adoption of this Agreement by the Requisite Shareholder Consent, which shall also include and constitute the irrevocable approval by the Shareholders of: (i) the escrow and indemnification obligations of the Indemnifying Parties set forth in Article VII hereof and the deposit of cash equal to the Escrow Amount into the Escrow Fund, (ii) the appointment of Xxxxx Xxxxxxx as the Earnout Representative and (iii) the appointment of Xxxxx Xxxxxxx as the Shareholder Representative. The Company shall deliver to Parent a copy of the written shareholder consents obtained pursuant to the Requisite Shareholder Consent.
(b) To the extent required by Washington Law, the Company shall promptly prepare and cause to be delivered to any Shareholder who has not approved this Agreement and the transactions contemplated hereby a notice of the approval of the Merger and adoption of this Agreement by written consent of the Shareholders pursuant to the applicable provisions of Washington Law, which notice shall constitute the notice to the Shareholders required by Legal Requirement that dissenters’ and/or appraisal rights may be available to the Shareholders in accordance with Washington Law.
(c) The Company shall use its commercially reasonable efforts to submit for approval by such number of Shareholders as is required by the terms of Section 280G(b)(5)(B) of the Code any payments and/or benefits that Parent and the Company mutually determine may, but for such approval, constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), so as to render the parachute payment provisions of Section 280G of the Code and the regulations promulgated thereunder inapplicable to any and all payments, acceleration of vesting and/or other benefits that might otherwise result, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reasons of Section 280G of the Code, with such shareholder vote to be obtained in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder (the “280G Approval”).
(d) The Company shall obtain and deliver to Parent, prior to the shareholder vote seeking the 280G Approval, a Parachute Payment Waiver, in substantially the form attached hereto as Exhibit E (“Parachute Payment Waiver”), from each Person who the Company reasonably believes is, with respect to the Company and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), and who might otherwise have, receive or have the right or entitlement to receive a parachute payment under Section 280G of the Code, pursuant to which each such Person shall agree, unless the 280G Approval has been obtained in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, to waive any and all right or entitlement to the payments, acceleration of vesting and/or other benefits referred to in Section 5.7(c) hereof to the extent the value thereof exceeds 2.99 times such Person’s base amount determined in accordance with Section 280G of the Code and the regulations promulgated thereunder and each such Parachute Payment Waiver shall remain in effect immediately prior to the Effective Time.
(e) Notwithstanding the foregoing, the Company shall give the Shareholders sufficient notice prior to the Closing such that no Shareholder will be able to exercise appraisal or similar rights with respect to this Agreement, the Merger or the transactions contemplated hereby, if such Shareholder has not perfected such rights prior to Closing, pursuant to the applicable provisions of Washington Law. The Company shall use commercially reasonable efforts to ensure that Shareholders holding no more than five percent (5%) of any series or class of Company Capital Stock continue to have a right to exercise appraisal, dissenters’ or similar rights under applicable law with respect to their Company Capital Stock by virtue of the Merger.
(f) Any materials to be submitted to the Shareholders in connection with the solicitation of their approval of the Merger and this Agreement, and if required pursuant to Section 5.7(c) hereof, any materials submitted to the Shareholders in connection with obtaining the 280G Approval (the “Soliciting Materials”), shall be subject to the reasonable review and approval by Parent (such approval or refusal thereof not to be unreasonably delayed by Parent). The Company will promptly advise Parent in writing if at any time prior to the Closing the Company shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Soliciting Materials in order to make statements contained or incorporated by reference therein not misleading or to comply with applicable law.
(g) (i) The Company’s Board of Directors has unanimously recommended that the Company’s shareholders vote in favor of the approval of the Merger, this Agreement and the CBTC Articles transactions contemplated hereby pursuant to the Shareholder Written Consent; (ii) any Soliciting Materials shall include a statement to the effect that the Company’s Board of Directors has unanimously recommended that the Company’s shareholders vote in favor of the approval of the Merger, this Agreement and the CBTC Bylawstransactions contemplated hereby pursuant to the Shareholder Written Consent; and (iii) neither the Company’s Board of Directors nor any committee thereof shall withhold, all action necessary withdraw, amend or modify, or propose or resolve to convene an appropriate meeting of withhold, withdraw, amend or modify in a manner adverse to Parent, its shareholders to consider and vote upon the approval unanimous adoption of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation approval of the Merger (including any adjournment or postponement, and the “CBTC Meeting”), as promptly as practicable after transactions contemplated hereby nor the Registration Statement is declared effective. The CBTC unanimous recommendation of the Company’s Board shall recommend of Directors that the CBTC shareholders approve and adopt Company Shareholders vote in favor of the approval of the Merger, this Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 1 contract
Shareholder Approval. CBTC (a) The Company agrees to take, in accordance with applicable law Law, the Certificate of Incorporation of the Company and the CBTC Articles and Bylaws of the CBTC BylawsCompany, all action necessary to convene an appropriate a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCthe Company’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC Company Meeting”)) and, subject to Section 5.09, shall take all lawful action to solicit shareholder approval. The Company agrees to use commercially reasonable efforts to convene the Company Meeting as promptly soon as practicable after the Registration Statement is has been declared effective. Except with the prior approval of Buyer or as required by applicable law, no other matters shall be submitted for the approval of the Company shareholders at the Company Meeting. The CBTC Company’s Board of Directors shall at all times prior to and during the Company Meeting recommend that approval of this Agreement by the CBTC shareholders approve of the Company and adopt shall not withhold, withdraw, amend, or modify its recommendation in any manner adverse to Buyer or take any other action or make any other public statement inconsistent with its recommendation, except as and to the extent expressly permitted by Section 5.09 (a “Change in Recommendation”). Notwithstanding any Change in Recommendation, and unless this Agreement has been terminated in accordance with its terms, the Company shall submit this Agreement to its shareholders for their consideration at the Company Meeting and nothing in this Agreement shall relieve the Company of the obligation to do so. The Company shall keep Buyer updated with respect to the proxy solicitation results in connection with the Company Meeting as reasonably requested by Buyer.
(b) Buyer agrees to take, in accordance with applicable Law, the Certificate of Incorporation of Buyer and the Bylaws of Buyer, all action necessary to convene a meeting of its shareholders to consider and vote upon the Buyer Share Issuance and any other matters required to be approved by Buyer’s shareholders in order to permit consummation of the transactions contemplated hereby; provided that by this Agreement (including any adjournment or postponement, the CBTC “Buyer Meeting”) and shall take all lawful action to solicit shareholder approval. Buyer agrees to use commercially reasonable efforts to convene the Buyer Meeting on a date following the Company Meeting as soon as practicable after the Registration Statement has been declared effective. Except with the prior approval of the Company or as required by applicable Law, no other matters shall be submitted for the approval of Buyer shareholders at the Buyer Meeting. Subject to its fiduciary duties, Buyer’s Board may fail of Directors shall at all times prior to make such recommendationand during the Buyer Meeting recommend approval of the Buyer Share Issuance by the shareholders of Buyer and, or changeunless its fiduciary duties otherwise require, shall not withhold, withdraw, qualify or modifyamend, or publicly propose to change, withdraw, qualify or modify, modify its recommendation in a any manner that is adverse to United, the Company or take any such recommendation (an “Adverse Recommendation Change”), if other action or make any other public statement inconsistent with their recommendation. Buyer shall keep the CBTC Board has, after having consulted with its financial advisor Company updated with respect to financial matters and having consulted the proxy solicitation results in connection with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be Buyer Meeting as reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and Company.
(c) Each of Buyer and the CBTC BoardCompany shall use its reasonable best efforts to cause the Buyer Meeting and the Company Meeting to occur as soon as reasonably practicable after the Registration Statement has been declared effective and on the same date, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure Company Meeting occurring prior to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawBuyer Meeting.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate (a) Target shall call a meeting of its shareholders to consider and vote upon be held as soon as reasonably practicable after the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation effectiveness of the Merger Form S-4 under the Securities Act for the purpose of obtaining the Target Requisite Shareholder Approval (including any meeting that occurs after any adjournment or postponement, the “CBTC Target Shareholder Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in substantially the terms and conditions set forth in this Agreement, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable. The Target Board shall use its reasonable best efforts to obtain from its shareholders the Target Requisite Shareholder Approval, including by recommending that its shareholders vote in favor of this Agreement as would enable Agreement, on substantially the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be terms and conditions set forth in this Agreement, required to propose consummate the transactions contemplated by this Agreement. Target shall submit this Agreement to its shareholders at the Target Shareholder Meeting even if the Target Board shall have withdrawn, modified or qualified its recommendation. The Target Board has adopted resolutions approving the Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to Target’s shareholders for their consideration.
(b) Buyer shall call a meeting of its shareholders to be held as soon as reasonably practicable after the effectiveness of the Form S-4 under the Securities Act for the purpose of obtaining the Buyer Requisite Shareholder Approval (including any meeting that occurs after any adjournment or postponement, the “Buyer Shareholder Meeting”), and shall use its reasonable best efforts to cause such adjustments); meeting to occur as soon as reasonably practicable. Buyer shall submit this Agreement to its shareholders at the Buyer Shareholder Meeting even if the Buyer Board shall have withdrawn, modified or qualified its recommendation. The Buyer Board shall use its reasonable best efforts to obtain the Buyer Requisite Shareholder Approval, including by recommending that its shareholders vote in favor of this Agreement, on substantially the terms and conditions set forth in this Agreement, required to consummate the transactions contemplated by this Agreement. The Buyer Board has adopted resolutions approving the Merger, on substantially the terms and conditions set forth in this Agreement, and directing that the Merger, on such terms and conditions, be submitted to Buyer’s shareholders for their consideration.
(c) Each of Buyer and Target shall, and shall cause its respective Subsidiaries to, use their reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements that may be imposed on such Party or its Subsidiaries with respect to the CBTC BoardMerger and, following such five subject to the conditions set forth in Article VII, to consummate the transactions contemplated by this Agreement, and (5ii) business day periodto obtain (and to cooperate with the other Party to obtain) any material consent, determines authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to be obtained by Target or Buyer or any of their respective Subsidiaries in good faithconnection with the Merger and the other transactions contemplated by this Agreement.
(d) With respect to the ESOP, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach Trustee of the fiduciary duties ESOP (the “Trustee”) shall solicit participants in and beneficiaries of the members ESOP to direct the Trustee as to the voting of shares held in their respective accounts under the ESOP in accordance with the terms of the CBTC Board ESOP documents and applicable law and the Trustee shall recommend to the ESOP participants in the Proxy Statement that such participants and beneficiaries direct the Trustee with respect to the shares allocated to their respective accounts under applicable lawthe ESOP to vote.
Appears in 1 contract
Shareholder Approval. CBTC agrees to takeThe Company, acting through the Company’s board of directors, reasonably promptly following obtaining the Company Shareholder Approval, shall deliver, in accordance with the CGCL and other applicable law law, the Company’s Articles of Incorporation and the CBTC Articles and the CBTC Bylaws, notice to the Holders that the Required Shareholder Approval has been obtained. In addition, the Company shall notify all action necessary Holders entitled to convene receive notice under Chapter 13 of the CGCL that dissenters’ rights are available with respect to their applicable shares of Company Capital Stock. If it is determined at any time after such notice is delivered that the signed written consents of certain Holders delivered by the Company to the Purchaser immediately after the execution of this Agreement, were not sufficient to obtain the Required Shareholder Approval for any reason whatsoever (an appropriate meeting “Approval Deficiency Event”), the Company, acting through the Company’s board of its directors, immediately upon learning of an Approval Deficiency Event, shall solicit, in accordance with the CGCL and other applicable law, the Company’s Articles of Incorporation and Bylaws, the approval, pursuant to a written consent, of the principal terms of the Merger from all of the holders of Company stock entitled to vote thereon other than the Holders that have previously signed a written consent with respect to such matter. The materials provided to such shareholders in connection with any approval of the principal terms of the Merger shall be subject to consider the prior review and approval by the Purchaser and shall include an information statement including information regarding the Company, the terms of this Agreement, the unanimous recommendation of the Company’s board of directors of directors that such Holders vote upon the approval their shares in favor of adoption of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation the approval of the principal terms of the Merger and other transactions contemplated by this Agreement. If an Approval Deficiency Event occurs and the Company fails to obtain and deliver such written consent from at least the holders of Company stock necessary to provide the Required Shareholder Approval within ten (including 10) Business Days thereafter, the Company, acting through the Company’s board of directors, shall immediately take all such action as may be necessary in accordance with the CGCL and other applicable law, the Company’s Articles of Incorporation and Bylaws, to duly convene a meeting of the holders of Company stock for the purpose of obtaining the Required Shareholder Approval and shall give the Purchaser notice of such meeting and any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawthereof.
Appears in 1 contract
Shareholder Approval. CBTC agrees (a) As promptly as practicable following the date upon which the Registration Statement, filed pursuant to takeSection 6.5, shall have become effective (but in accordance with applicable law and any event within forty-five (45) days thereof), the CBTC Articles and the CBTC Bylaws, all action necessary Company Board will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement Company Shareholder Matters and any other matters required to be approved or adopted by CBTC’s such shareholders for consummation in order to carry out the intentions of this Agreement and the Merger transactions contemplated hereby. In furtherance of that obligation, the Company will take, in accordance with applicable Law and its Constituent Documents, all action necessary, proper, desirable or advisable to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC Company Meeting”), ) as promptly as practicable after (but in any event within forty-five (45) days of the Registration Statement is declared becoming effective) to consider and vote upon approval of the Company Shareholder Matters and any such other matters. The CBTC Company and the Company Board, as applicable, will each use its reasonable best efforts to obtain from each class of the Company’s shareholders the required vote to approve the Company Shareholder Matters and any such other matters, including soliciting proxies through the Proxy Statement in accordance with applicable Law and recommending that the Company’s shareholders vote in favor of the Company Shareholder Matters (and including such recommendation in the Proxy Statement). The Company shall provide Parent with a reasonable opportunity to review and comment upon all proxy materials prior to the distribution of such proxy materials to shareholders of the Company and all such proxy materials shall be reasonably satisfactory to Parent prior to the distribution thereof.
(b) Except as provided in this Section 6.2(b), the Company Board shall recommend communicate to the shareholders of the Company its recommendation that the CBTC shareholders adopt and approve the Company Shareholder Matters and adopt include such recommendation in the Agreement and the transactions contemplated hereby; provided that the CBTC Company’s proxy materials. The Company Board may fail to make such recommendation, or change, shall not (i) withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedParent, such recommendation; or (ii) approve or recommend, or propose publicly to approve or recommend, any such recommendation Acquisition Proposal (each, an “Adverse Recommendation Change”); provided, however, that, the Company Board may submit this Agreement to the Company’s shareholders without recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), in which event the Company Board may communicate the basis for its lack of recommendation to the Company’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by Law, if (A) the CBTC Company’s Board hasof Directors determines in good faith, after having consulted consultation with its financial advisor with respect to financial matters the Company FA and having consulted with and considered the advice of its outside legal counsel, determined that it has received an Acquisition Proposal (that did not result from a breach of Section 6.7) that is a Superior Proposal and such Superior Proposal has not been withdrawn; (B) the Company Board determines in good faith, after consultation with the Company’s outside counsel, that a failure to make an Adverse Recommendation Change accept such Superior Proposal would be reasonably likely to constitute result in a breach of the fiduciary duties of the members of the CBTC Company Board under applicable lawLaw; provided that: (aC) prior to making an Adverse Recommendation Change, the CBTC Company Board shall provide provides written notice to United (a “Notice of Recommendation Change”) to Parent of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the fifth (5th) business day Business Day following delivery of such notice, which notice shall specify any the material terms and conditions and the identity of the third party in any applicable such Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment or modification to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day Change and a new notice period as referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change6.2(b)); (bD) after providing such Notice of Recommendation Change, CBTC shall negotiate the Company negotiates in good faith with United Parent (if requested by UnitedParent) and provide United provides Parent reasonable opportunity during the subsequent five (5) business day Business Day period following the Notice of Recommendation Change to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Company Board to proceed without an Adverse Recommendation Change (it being understood Change; provided, however, that United Parent shall not be required to propose any such adjustments); and (cE) the CBTC Company Board, following the final such five (5) business day Business Day period, again determines in good faith, after consultation with its financial advisors the Company FA and outside counsel, that the such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to constitute result in a breach of the fiduciary duties of the members of the CBTC Board of Directors of the Company under applicable lawLaw. Nothing in this Agreement shall be interpreted to excuse (1) the Company or the Company Board from complying with its obligation to submit this Agreement and the other Company Shareholder Matters to its shareholders or (2) any party to a Voting Agreement from complying with its obligations thereunder. Neither the Company nor the Company Board shall submit any Acquisition Proposal other than the Merger to the vote of its shareholders unless this Agreement shall have first been terminated in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, should the Company Board effect an Adverse Recommendation Change pursuant to this Section 6.2(b) and the Company shareholders, at the Company Meeting with a sufficient number of shares represented to constitute a quorum necessary to conduct the business of such meeting, vote against approval of the Company Shareholder Matters, the Company shall no longer be subject to the requirements set forth in Section 6.2(c) and Parent and the Company shall no longer be subject to the requirements set forth in Section 6.17.
(c) The Company shall adjourn or postpone the Company Meeting if, as of the time for which such meeting is originally scheduled, there are insufficient shares of Company Voting Common Stock or Company Non-Voting Common Stock, as applicable, represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting, the Company has not received proxies representing a sufficient number of shares necessary to approve all of the Company Shareholder Matters, and the Company shall continue to use all reasonable best efforts to assist in the solicitation of proxies from shareholders relating to the approval of the Company Shareholder Matters. The Company shall only be required to adjourn or postpone the Company Meeting twice pursuant to this Section 6.2(c). Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, the Company Meeting shall be convened, and the Company Shareholder Matters shall be submitted to the shareholders of the Company at the Company Meeting for approval in accordance with the terms of this Agreement, and nothing contained herein shall be deemed to relieve the Company of such obligation.
(d) The Company shall cooperate and keep Parent informed on a current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its shareholders.
(e) In the event that any Principal Shareholder shall breach its obligations under the Voting Agreement, pursuant to Section 13(g) thereof the Company shall use its reasonable best efforts to enforce the terms therein, including Section 2 and Section 5 thereof.
Appears in 1 contract
Shareholder Approval. CBTC agrees (a) As soon as reasonably practicable after execution of this Agreement, Parent shall prepare and file with the Securities and Exchange Commission (the "SEC") a proxy statement seeking Parent's shareholders' approval of, among other things, the sale of the Purchased Assets to takeBuyer (the "Proxy Statement"), and shall use its reasonable efforts to cause SEC review of the Proxy Statement to be completed as promptly as practicable. Buyer shall cooperate in accordance the preparation and filing of the Proxy Statement and shall furnish all information concerning Buyer as Parent may reasonably request in connection with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene such action. Parent shall call an appropriate annual or special meeting of its shareholders (the "Shareholders' Meeting"), to consider and vote be held as soon as reasonably practicable after the SEC indicates that it has no further comments on the Proxy Statement, for the purpose of Parent's shareholders voting upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation the sale of the Merger Purchased Assets to Buyer.
(including any adjournment or postponementb) In connection with the Shareholders' Meeting, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board of Directors of Parent shall recommend to its stockholders the approval of the matters submitted for approval unless withdrawal of such recommendation is required in order for the Board of Directors of Parent to comply with its obligations to Parent shareholders under applicable law. If Parent or its Representatives provides information to or negotiates with a third party that makes an unsolicited bid to acquire Parent in its entirety in accordance with Section 6.2(a) hereof and the CBTC shareholders approve and adopt the Agreement and Board of Directors subsequently withdraws its recommendation of the transactions contemplated hereby; provided hereby on the basis that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modifyit cannot, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted consistent with its financial advisor duties to shareholders under applicable law, continue to recommend the transactions contemplated hereby in light of the existence of such other transaction, Parent shall pay to Buyer upon the earlier of (i) Buyer's, Seller's and Parent's mutually agreeing to terminate this Agreement in light of such other transaction; (ii) termination of this Agreement by Buyer pursuant to clause (ii) or (iii) of Section 11.1(a) hereof or (iii) Parent's shareholders failing to approve the transactions contemplated hereby at the Shareholders' meeting:
(1) a break-up fee in the amount of $250,000 plus Buyer's actual expenses incurred with respect to financial matters its environmental due diligence, and having consulted with and considered the advice of its outside legal counsel, determined that the failure (2) a topping fee equal to make an Adverse Recommendation Change would be reasonably likely to constitute a breach five percent (5%) of the fiduciary duties acquisition price offered by such third party attributable to the assets of the members of the CBTC Board under applicable law; Seller. Additionally, any interim financing provided that: (a) prior by Buyer to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentationSeller or Parent, if in writing)any, and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions repaid immediately upon termination of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and Agreement.
(c) Subject to the CBTC Boardprovisions of this Section 6.7, following the Board of Directors and officers of Parent shall use their reasonable efforts to obtain such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawshareholders' approval.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take(a) As soon as reasonably practicable following the date hereof, Consumers shall take all action necessary in accordance with applicable law the Exchange Act, the laws of the Commonwealth of Pennsylvania and its Articles of Incorporation and Bylaws to call and give notice of a meeting (the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting "Meeting") of its shareholders to consider and vote upon the approval and adoption of this Agreement the Plan of Merger and for such other purposes as may be necessary or desirable. The Board of Directors of Consumers has unanimously determined that the Merger is advisable and in the best interests of the shareholders of Consumers and, subject to their fiduciary duties as advised by counsel, shall recommend without qualification of any nature that Consumers shareholders vote to approve and adopt the Plan of Merger and any other matters required to be approved submitted to Consumers shareholders in connection therewith. The Board of Directors of Consumers shall use commercially reasonable efforts to solicit and secure from shareholders of Consumers such approval and adoption, subject to their fiduciary duties as advised by CBTC’s shareholders for consummation counsel, which efforts shall include causing Consumers to solicit shareholder proxies therefor and advising LaSalle promptly upon its request from time to time as to the status of the Merger (including shareholder vote then tabulated. With regard to any adjournment or postponementshares of Consumers Common Stock held by the ESOP, the “CBTC Meeting”)trustee of the ESOP shall vote upon the approval and adoption of the Plan of Merger with regard to all such shares of Common Stock in accordance with the terms of the ESOP, as promptly as practicable after Sections 404 and 406 of ERISA, and Section 4975 of the Registration Statement is declared effective. The CBTC Board Code.
(b) Consumers shall recommend that prepare and file with the CBTC shareholders approve and adopt SEC under the Agreement Exchange Act and the transactions contemplated hereby; provided that rules and regulations promulgated by the CBTC Board may fail SEC thereunder within 15 days following the date hereof, a preliminary draft of the Proxy Statement. LaSalle and CAC shall cooperate with Consumers in the preparation and filing of the Proxy Statement and any amendments and supplements thereto. Neither the Proxy Statement nor any preliminary draft thereof shall be filed, no amendment or supplement thereto shall be made, nor shall any communication with the SEC be initiated, by Consumers, in each case, without prior consultation with LaSalle and their counsel and without first having sent such materials to make such recommendationLaSalle for its comments. Consumers will use commercially reasonable efforts to have any review of the Proxy Statement conducted by the SEC promptly. As soon as reasonably practicable following completion of any review by, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any the absence of such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changereview, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions termination of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such casewaiting period of, the five (5) business day period referred SEC, Consumers shall cause to in this Section 7.02 shall be reduced mailed a definitive Proxy Statement to three (3) business days following its shareholders entitled to vote on the delivery Plan of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Shareholder Approval. CBTC agrees The Board of Directors of Company has resolved to take, in accordance with applicable law recommend to Company’s shareholders that they approve this Agreement and the CBTC Articles and the CBTC Bylaws, all action necessary will submit to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s its shareholders for consummation in order to carry out the intentions of this Agreement. In furtherance of that obligation, Company will take, in accordance with applicable Law and the Merger Company Articles and the Company Code, all action necessary to convene a meeting of its shareholders (including any adjournment or postponement, the “CBTC Company Shareholders’ Meeting’”), to be held as promptly as practicable after Purchaser has obtained the Registration SEC’s declaration of effectiveness of the Form S-4, to consider and vote upon approval of this Agreement. Company agrees that its obligations pursuant to this Section 6.3 shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Acquisition Proposal or Change in the Company Recommendation. Subject to the provisions of Section 6.7, Company shall, through its Board of Directors, recommend to its shareholders the approval and adoption of this Agreement (the “Company Recommendation”), and shall use its best efforts to obtain from its shareholders the requisite affirmative vote to approve this Agreement (the “Company Shareholder Approval”), including, if necessary, adjourning the Company Shareholders’ Meeting if there are insufficient votes to approve this Agreement to allow additional time to attain the Company Shareholder Approval. Notwithstanding any Change in the Company Recommendation, this Agreement shall be submitted to the shareholders of Company at the Company Shareholders’ Meeting for the purpose of obtaining the Company Shareholder Approval and nothing contained herein shall be deemed to relieve Company of such obligation so long as Purchaser has obtained the SEC’s declaration of effectiveness of the Form S-4; provided, however, that if the Board of Directors of Company shall have effected a Change in the Company Recommendation permitted hereunder, then the Board of Directors of Company shall submit this Agreement to Company’s shareholders without the recommendation of this Agreement (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to Company’s shareholders in the Proxy Statement is declared effectiveor an appropriate amendment or supplement thereto to the extent required by applicable Law; provided that, for the avoidance of doubt, Company may not take any action under this sentence unless it has complied with the provisions of Section 6.7. The CBTC In addition to the foregoing, neither Company nor its Board of Directors of Company shall recommend that to its shareholders or submit to the CBTC vote of its shareholders approve and adopt any Acquisition Proposal other than the Agreement and Merger. Except as set forth in Section 6.7, neither the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, of Directors of Company nor any committee thereof shall withdraw, qualify or modify, or propose publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to UnitedPurchaser, the Company Recommendation or take any such recommendation action, or make any public statement, filing or release inconsistent with the Company Recommendation (an any of the foregoing being a “Adverse Recommendation ChangeChange in the Company Recommendation”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 1 contract
Shareholder Approval. CBTC agrees Keystone shall promptly call, and use its commercially reasonable efforts to takepromptly convene, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate a special meeting of its shareholders Shareholders (the "Keystone Shareholders' Meeting") on or before October 31, 2003 to consider and vote upon the approval of on this Agreement and to obtain any other matters approvals of its shareholders required in connection with the transactions contemplated by this Agreement, or, in lieu thereof, shall use its commercially reasonable efforts to be approved obtain, on or before October 31, 2003, any such approval by CBTC’s shareholders for consummation the written consent of its Shareholders as provided in Section 1766 of the Merger (BCL. In connection with the Keystone Shareholders' Meeting or obtaining the written consent of the Shareholders, Keystone shall distribute to its shareholders a proxy statement including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the all such information with respect to this Agreement and the transactions contemplated hereby; provided that hereby (the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”"Proxy Statement"), if as shall be determined by the CBTC Board hasof Directors of Keystone (the "Board"). As soon as practicable following the execution of this Agreement, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute Keystone shall prepare a breach draft of the fiduciary duties Proxy Statement and shall deliver a copy of such draft to Acquiror. Immediately following such delivery, Acquiror shall have three Business Days to provide Keystone its reasonable comments, if any, regarding portions of the members Proxy Statement solely relating to "parachute payments" within the meaning of Section 280G of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangeCode and Keystone shall, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take incorporate such action would be reasonably likely to constitute reasonable comments. Keystone shall provide a breach copy of the fiduciary duties Proxy Statement to Acquiror prior to its distribution to its Shareholders for approval of the members Merger at the Keystone Shareholders' Meeting or by written consent, as the case may be. Keystone will endeavor to deliver to its Shareholders the Voting Agreement attached to Exhibit B and to obtain the execution of such Voting Agreement by its Shareholders prior to the Keystone Shareholders' Meeting. Approval of this Agreement by the Shareholders of Keystone shall not restrict the ability of the CBTC Board board of directors of Keystone thereafter to terminate this Agreement in accordance with Section 9.1 hereof or to cause Keystone to enter into an amendment to this Agreement pursuant to Section 12.10 hereof to the extent permitted under applicable lawthe BCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Keystone Marketing Services Inc)
Shareholder Approval. CBTC agrees Immediately upon execution of this Agreement, Waban shall deliver to take, in accordance with applicable law each Consenting Shareholder the Merger Consent and use commercially reasonable efforts to obtain a duly executed and dated Merger Consent from all Consenting Shareholders promptly after the CBTC Articles execution hereof. The parties intend that those consents of Consenting Shareholders be executed and delivered to Waban and Phase Forward by Consenting Shareholders immediately after delivery of such consents to the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider Consenting Shareholders and vote upon that pursuant thereto the approval of Consenting Shareholders irrevocably adopt and approve this Agreement and the Merger. Waban shall ensure that any other matters required to be approved shareholder consents delivered by CBTCthe Consenting Shareholders are obtained in compliance with and are valid and effective under the DGCL and Waban’s shareholders for consummation Certificate of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as Incorporation and bylaws then in effect. As promptly as practicable after the Registration Statement is declared effective. The CBTC Board execution and delivery to Waban and Phase Forward by the Consenting Shareholders of such consents (but in no event later than one business day thereafter), Waban shall recommend prepare and mail to every Waban Shareholder as of the record date (other than the Consenting Shareholders) the notices required by Section 228 of the DGCL, informing them that the CBTC shareholders approve and adopt the this Agreement and the transactions contemplated hereby; provided Merger were adopted and approved by the Consenting Shareholders, describing in reasonable detail the Merger and the Merger Consents, informing them that appraisal rights are available for their Waban Common Stock pursuant to Section 262 of the CBTC Board DGCL and providing them such additional information as may fail be necessary for them to make an informed decision whether to exercise appraisal rights under Section 262 of the DGCL. Waban shall afford Phase Forward and its counsel a reasonable opportunity to review and comment upon such recommendationnotices or other materials prior to such materials being delivered to the Waban Shareholders. Waban shall, through its Board of Directors, recommend to the Waban Shareholders the approval and adoption of this Agreement. Except in connection with the termination of this Agreement pursuant to Section 12.1, neither the Board of Directors of Waban nor any committee or change, withdraw, qualify or modify, or publicly propose to change, subcommittee thereof shall withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangePhase Forward, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery approval of such notice, which notice shall specify any material terms and conditions Board of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making Directors or such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions committee or subcommittee of this Agreement as would enable or the CBTC Merger or the recommendation of such Board of Directors to proceed without an Adverse Recommendation Change (it being understood the Waban Shareholders that United shall not be required to propose any such adjustments); they approve and (c) adopt this Agreement and the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Samples: Merger Agreement (Phase Forward Inc)
Shareholder Approval. CBTC (a) Company shall as promptly as practicable, but in any event within thirty (30) days after the date hereof, prepare a proxy statement (or comparable statement relating to a meeting of shareholders whether or not proxies are solicited) relating to the Company Shareholders Meeting (the “Proxy Statement”) that conforms with the requirements of the CBCA and applicable Law, including the requirements of any federal or state securities Law, and mail to its shareholders as promptly as reasonably practicable, the Proxy Statement and all other customary proxy or other materials for meetings such as the Company Shareholders Meeting and, to the extent required by applicable Law, as promptly as reasonably practicable prepare and distribute to Company shareholders any supplement or amendment to the Proxy Statement if any event shall occur which requires such action at any time prior to the Company Shareholders Meeting. Parent shall cooperate with Company in connection with the preparation of the Proxy Statement, including furnishing Company upon request with any and all information regarding Parent or its respective affiliates and the plans of such Persons for the Surviving Corporation after the Effective Time. The information supplied by Parent for inclusion in the Proxy Statement or any amendment or supplement thereto shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Company shall provide Parent and its Representatives a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, prior to disseminating to the shareholders of Company, and Company shall consider any comments proposed by Parent in good faith. Parent agrees promptly to takenotify Company if at any time prior to the Company Shareholders Meeting any information provided by Parent or its Affiliates in the Proxy Statement, or any amendment thereto, becomes incorrect or incomplete in any material respect, and to provide the information needed to correct such inaccuracy or omission.
(b) Subject to Section 8.1, Company shall take all action necessary in accordance with applicable law the CBCA and the CBTC Company Articles of Incorporation and the CBTC BylawsCompany Bylaws to duly call, all action necessary to give notice of, convene an appropriate and hold a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration distribution of the Proxy Statement for the purpose of obtaining the Requisite Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Shareholders Meeting”), and, except in the case of (i) a Company Adverse Recommendation Change pursuant to Section 6.8(f) or (ii) termination of this Agreement pursuant to Section 8.1, shall solicit, and use its reasonable best efforts to obtain, the Requisite Shareholder Approval thereat and shall include the Company Board Recommendation in the Proxy Statement. Company agrees that, unless this Agreement is declared effectiveterminated pursuant to Section 8.1, its obligations pursuant to this Section 6.3(b) to convene and hold the Company Shareholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Company Takeover Proposal or by the effecting of a Company Adverse Recommendation Change.
(c) Company shall cooperate with and keep Parent informed on a current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its shareholders. The CBTC Board Notwithstanding anything to the contrary contained in this Agreement, Company may adjourn or postpone the Company Shareholders Meeting (i) to the extent required by applicable Law, (ii) if as of the time for which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting or (iii) with the prior written consent of Parent (which shall recommend not be unreasonably withheld, delayed or conditioned). In addition, if at any time following the dissemination of the Proxy Statement, either Company or Parent reasonably determines in good faith that the CBTC Requisite Shareholder Approval is unlikely to be obtained at the Company Shareholders Meeting, then on a single occasion and prior to the vote contemplated having been taken, each of Company and Parent shall have the right to require a single adjournment or postponement of the Company Shareholders Meeting; provided, that no such adjournments or postponements shall delay the Company Shareholders Meeting by more than forty-five (45) days from the originally scheduled date. During any such period of adjournment or postponement, Company shall continue in all respects to comply with its obligations under this Section 6.3 and Section 6.8. Except as set forth in this Section 6.3, Company shall not have any obligation to postpone or adjourn the Company Shareholders Meeting.
(d) During the thirty (30) days following the date hereof, Company may in its sole discretion, in lieu of the Company Shareholders Meeting and the other requirements of this Section 6.3, seek and obtain the written consent of the shareholders of Company representing 100% of the Company Common Stock to approve and adopt the this Agreement and the transactions contemplated hereby; provided that hereby in accordance with the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach relevant provisions of the fiduciary duties CBCA and the Company Articles of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms Incorporation and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawBylaws.
Appears in 1 contract
Shareholder Approval. CBTC agrees The Company will use reasonable best efforts to takecause PNC Funds, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary Inc. (“PNC”) to convene an appropriate meeting of its shareholders to consider and vote upon obtain the approval of this Agreement and any other matters required to be approved by CBTC’s the shareholders for consummation of the Merger (including any adjournment or postponementLimited Maturity Bond Fund and the Total Return Bond Fund, each a series of PNC Funds, Inc., of a new sub-advisory agreement with the Company following the acquisition of the Company by Purchaser. In this regard, the “CBTC Meeting”), Company will (a) as promptly as reasonably practicable after the Registration Statement is declared effectivedate of this Agreement, use reasonable best efforts to cause PNC to prepare and file (after Purchaser has had a reasonable opportunity to review and comment) with the SEC a proxy statement seeking the approval by shareholders of the Limited Maturity Bond Fund and the Total Return Bond Fund, each a series of PNC Funds, Inc., of a new sub-advisory agreement with the Company following the acquisition of the Company by Purchaser, (ii) as promptly as reasonably practicable use reasonable best efforts to cause PNC to prepare and file (after Purchaser has had a reasonable opportunity to review and comment) any amendments or supplements necessary to be filed in response to any SEC comments on the proxy statement. The CBTC Company will provide to Purchaser a certified copy of the SEC exemptive order obtained by CNI Charter Funds that permits CNI Charter Funds, subject to certain conditions required by the SEC, to approve for the AHA Full Maturity Fixed Income Fund a new sub-advisory agreement with the Company following the acquisition of the Company by Purchaser without shareholder approval, and will use best efforts to provide to Purchaser evidence that CNI Charter Funds has complied with all of the conditions of the exemptive order, including, without limitation, having obtained the necessary approval of the Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters of trustees of CNI Charter Funds and having consulted with and considered provided the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach shareholder of the fiduciary duties AHA Full Maturity Fixed Income Fund with the requisite information statement. In this regard, the Company will as promptly as reasonably practicable after the date of this Agreement, use reasonable efforts to cause CNI Charter Funds to prepare and furnish (after Purchaser has had a reasonable opportunity to review and comment) to shareholders of the members AHA Full Maturity Fixed Income Fund an information statement, meeting the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the CBTC Board under applicable law; provided that: (a) prior Exchange Act, relating to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawsub-advisory agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Titanium Asset Management Corp)
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate AMNB shall call a meeting of its shareholders to consider and vote upon (the approval of this Agreement and any other matters required “AMNB Meeting,”) to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), held as promptly soon as reasonably practicable after the Registration Statement is declared effective, for the purpose of obtaining (a) the Requisite AMNB Vote and (b) if so desired and mutually agreed, a vote upon other matters of the type customarily brought before a meeting of shareholders in connection with the approval of a merger agreement or the transactions contemplated thereby, and AMNB shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable after the date of this Agreement. The CBTC AMNB and its Board of Directors shall recommend use its reasonable best efforts to obtain from the shareholders of AMNB, the Requisite AMNB Vote, including by communicating to the shareholders of AMNB its recommendation (and including such recommendation in the Proxy Statement/Prospectus) that the CBTC shareholders of AMNB adopt and approve and adopt the this Agreement and the transactions contemplated hereby; provided that hereby (the CBTC “AMNB Board may Recommendation”). AMNB and its Board of Directors shall not (i) withhold, withdraw, modify or qualify in a manner adverse to Buyer, the AMNB Board Recommendation, (ii) fail to make such the AMNB Board Recommendation in the Proxy Statement/Prospectus, or otherwise submit this Agreement to its shareholders for adoption and approval without recommendation, (iii) adopt, approve, agree to, accept, recommend or changeendorse an Acquisition Proposal or publicly announce an intention to adopt, withdrawapprove, qualify recommend or modifyendorse an Acquisition Proposal, (iv) fail to publicly and without qualification (A) recommend against any Acquisition Proposal or (B) reaffirm the AMNB Board Recommendation within ten (10) business days (or such fewer number of days as remains prior to the AMNB Meeting, as applicable) after an Acquisition Proposal is made public or any request by Buyer to do so, (v) take any action, or make any public statement, filing or release inconsistent with the AMNB Board Recommendation or (vi) publicly propose to changedo any of the foregoing (any of the foregoing, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”). Notwithstanding anything in this Agreement to the contrary, if (x) after the CBTC date hereof, AMNB receives a Superior Proposal and (y) the Board hasof Directors of AMNB, after having consulted consulting with its financial advisor outside counsel and, with respect to financial matters and having consulted with and considered the advice of matters, its outside legal counselfinancial advisors, determined determines in good faith that the failure to make an Adverse Recommendation Change it would nevertheless be reasonably likely to constitute be a breach violation of its fiduciary duties under applicable law to make or continue to make the AMNB Board Recommendation, AMNB’s Board of Directors may, prior to the receipt of the fiduciary duties Requisite AMNB Vote, (A) submit this Agreement to AMNB shareholders without recommendation (although the resolutions approving this Agreement as of the members date hereof may not be rescinded or amended), in which event AMNB’s Board of Directors may communicate the basis for its lack of a recommendation to its shareholders in the Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent required by law, or (B) terminate this Agreement pursuant to Section 8.1(g) and enter into an Acquisition Agreement with respect to a Superior Proposal subject to compliance with Section 8.2(b)(ii); provided, that AMNB’s Board of Directors may not take any actions under this sentence unless it (I) has complied in all material respects with Section 6.11, (II) gives Buyer at least five (5) business days’ prior written notice of its intention to take such action and a reasonable description of the CBTC Board under applicable law; provided that: event or circumstances giving rise to its determination to take such action (a) prior to making an Adverse Recommendation Change, including the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any latest material terms and conditions and the identity of the third party in any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if or any amendment or modification thereof, or describe in reasonable detail such other event or circumstances, including the information under Section 6.11(b)) and (III) at the end of such notice period, takes into account any amendment or modification to this Agreement proposed by Xxxxx and, after consulting with its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that such Superior Proposal remains a Superior Proposal and it would nevertheless be reasonably likely to be a violation of its fiduciary duties under applicable (it being understood that any law to make or continue to make the AMNB Board Recommendation. Any material amendment to any material term Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of such Superior Proposal shall this Section 6.3 and will require a new Notice of Recommendation Changenotice period as referred to in this Section 6.3, except that, in such case, that the notice period shall be three (3) business days rather than the five (5) business day notice period referred to otherwise contemplated by the preceding sentence. AMNB shall adjourn or postpone the AMNB Meeting if, as of the time for which such meeting is originally scheduled there are insufficient shares of AMNB Common Stock represented (either in this Section 7.02 shall be reduced to three (3person or by proxy) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach quorum necessary to conduct the business of such meeting. Notwithstanding anything to the fiduciary duties contrary herein, unless this Agreement has been terminated in accordance with its terms, the AMNB Meeting shall be convened and this Agreement shall be submitted to the shareholders of AMNB at the members AMNB Meeting, and nothing contained herein shall be deemed to relieve AMNB of the CBTC Board under applicable lawsuch obligation.
Appears in 1 contract
Samples: Merger Agreement (American National Bankshares Inc.)
Shareholder Approval. CBTC (a) Company agrees to take, in accordance with applicable law Law, the Articles of Organization of Company and the CBTC Articles and the CBTC BylawsBylaws of Company, all action necessary to convene an appropriate a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCCompany’s shareholders for in order to permit consummation of the Merger transactions contemplated by this Agreement (including any adjournment or postponement, the “CBTC Company Meeting”)) and, subject to Section 5.10 of this Agreement, shall take all lawful action to solicit shareholder approval, including by communicating to its shareholders the Company board of directors’ recommendation (and including such recommendation in the Proxy Statement) that the shareholders approve this Agreement and the transactions contemplated hereby (the “Company Board Recommendation”) and shall not make a Company Adverse Recommendation Change, except in accordance with this Section 5.05 and Section 5.10. Company shall engage a proxy solicitor reasonably acceptable to Buyer to assist in the solicitation of proxies from shareholders relating to the Requisite Company Shareholder Approval. Notwithstanding the foregoing or any other provision of this Agreement, but subject to Section 5.10, Section 7.01 and Section 7.02 of this Agreement, as promptly applicable, if the board of directors of Company, in response to (1) a Company Intervening Event or (2) a Company Superior Proposal, in each case, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisor, determines in good faith that it would be reasonably likely to result in a violation of its fiduciary duties under applicable Law to continue to make the Company Board Recommendation, then, prior to the receipt of the Requisite Company Shareholder Approval, the board of directors of Company may withhold or withdraw or modify or qualify in a manner adverse to Buyer the Company Board Recommendation or may submit this Agreement and the Merger to its
(b) Company shall use its reasonable best efforts to cause the Company Meeting to occur as soon as reasonably practicable after the Registration Statement is has been declared effective. The CBTC Board shall recommend that effective providing, at a minimum, sufficient time for the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail holders of shares of Company Common Stock in street name to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted communicate with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawbeneficial owners.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law (i) CVCY and the CBTC Articles and the CBTC Bylaws, CWBC shall each take all action necessary or appropriate according to applicable Law and its articles and bylaws to call, give notice of, convene an appropriate and, as soon as promptly practicable, but not later than 50 days after the Registration Statement is declared effective under the Securities Act by the SEC, hold a meeting of its shareholders (for CWBC, the “CWBC Shareholders Meeting,” for CVCY, the “CVCY Shareholders Meeting,” each, a “Shareholders Meeting” and collectively the “Shareholders Meetings”), and use commercially reasonable efforts to consider solicit proxies to obtain the Requisite Shareholder Approvals. CVCY and vote upon CWBC shall each use its commercially reasonable efforts to schedule and convene the Shareholders Meetings on the same day.
(ii) After the execution of this Agreement, the Parties will cooperate to prepare the Joint Proxy Statement. Subject to Section 6.7(e), each Party’s Board of Directors shall at all times prior to and during its Shareholder Meeting, any adjournments and until the Requisite Shareholder Approval is obtained, recommend that the transactions contemplated hereby be adopted and approved and use its commercially reasonable efforts to obtain the Requisite Shareholder Approval. Each Party shall cooperate and keep the other Party informed on a current basis regarding its solicitation efforts and voting results following the dissemination of the Joint Proxy Statement to its shareholders.
(iii) Without limiting the generality of the foregoing, unless this Agreement has terminated in accordance with its terms, this Agreement and the Merger shall be submitted to the shareholders of the Parties at the Shareholder Meeting whether or not (x) its Board of Directors shall have effected a Change in Recommendation or (y) any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to a Party or any of its advisors.
(iv) Neither Party shall, without the prior written consent of the other Party, adjourn or postpone its Shareholder Meeting; provided that a Party may, without the prior written consent of the other Party, adjourn or postpone its Shareholder Meeting (A) if, as of the time for which the Shareholder Meeting is originally scheduled (as set forth in the Joint Proxy Statement), there are insufficient shares of represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholder Meeting, (B) after consultation with the other Party, if the failure to adjourn or postpone the Shareholder Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required supplement or amendment to the Joint Proxy Statement, or (C) after consultation with the other Party, for a single period not to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Requisite Shareholder Approval. During any period of adjournment, delay or postponement, each Party shall continue in all respects to comply with its obligations under this Section 6.8, and shall in good faith use commercially reasonable efforts (including engaging a proxy solicitor) to obtain the Requisite Shareholder Approval.
(v) Each Party may require the other Party to adjourn, delay or postpone the other Party’s Shareholder Meeting once for a period not to exceed thirty (30) calendar days (but prior to the date that is four (4) Business Days prior to the End Date) to solicit additional proxies necessary to obtain the shareholder approval. Once a Party has established a record date for its Shareholder Meeting, it shall not change such record date or establish a different record date for its Shareholder Meeting without the prior written consent of the other Party, unless required to do so by applicable Law or its articles or bylaws or in connection with a postponement or adjournment of the Shareholder Meeting permitted by this Section 6.8.
(vi) Except with the prior written approval of the other Party, neither Party nor any member of its Board of Directors shall, at its Shareholder Meeting, submit any matters for approval of its shareholders other than the approval of the principal terms of this Agreement and the transactions contemplated hereby (other than matters of procedure, including a customary adjournment proposal to solicit additional proxies if necessary, and matters required by applicable Law to be voted on by the shareholders in connection with the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Community West Bancshares /)
Shareholder Approval. CBTC agrees (1) VCG Holding shall hold a special meeting of shareholders (which may also be at the annual meeting of shareholders) on or before January 31, 2005 for the purpose of obtaining Shareholder Approval (as defined below), with the recommendation of VCG’s Board of Directors that such proposal be approved, and VCG shall solicit proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. “Shareholder Approval” means such approval as may be required by the applicable rules and regulations of the American Stock Exchange (or any successor entity) from the shareholders of VCG with respect to takethe transactions contemplated by this Subscription Agreement, including the issuance of all of the Underlying Shares and shares of Common Stock issuable upon exercise of the Warrants in excess of 19.9% of VCG’s issued and outstanding Common Stock on the date hereof. Unless Shareholder Approval has been obtained and deemed effective in accordance with applicable law the rules and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation regulations of the Merger (American Stock Exchange, VCG shall not make any issuance whatsoever of Common Stock or any securities of VCG or its subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any adjournment debt, preferred stock, rights, options, warrants or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement other instrument that is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendationat any time convertible into or exchangeable for, or changeotherwise entitles the holder thereof to receive, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor Common Stock other than with respect to financial matters and having consulted with and considered the advice issuance of its outside legal counsel(a) shares of Common Stock or options to employees, determined that the failure officers, directors or consultants of VCG pursuant to make an Adverse Recommendation Change would be reasonably likely to constitute any stock or option plan duly adopted by a breach majority of the fiduciary duties non-employee members of the Board of Directors of VCG or a majority of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Changea committee of non-employee directors established for such purpose, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice securities upon the exercise of Recommendation Changeor conversion of any securities issued hereunder or convertible securities, CBTC shall negotiate in good faith with United (if requested by United) options or warrants issued and provide United reasonable opportunity during outstanding on the subsequent five (5) business day period to make such adjustments in the terms and conditions date of this Agreement, provided that such securities have not been amended since the date of this Subscription Agreement as would enable to increase the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any number of such adjustments); securities and (c) securities issued pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a person or entity which is, itself or through its subsidiaries, an operating company in a business synergistic with the CBTC Boardbusiness of VCG and in which VCG receives benefits in addition to the investment of funds, following but shall not include a transaction in which VCG is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Each Investor shall be entitled to obtain injunctive relief against VCG to preclude any such five (5) business day periodissuance, determines which remedy shall be in good faithaddition to any right to collect damages and VCG expressly waives any requirement that any court require such Investor to post any bond in connection therewith. On the Closing Date, after consultation with its financial advisors and outside counsel, that VCG shall have delivered to the failure to take such action would be reasonably likely to constitute a breach undersigned written voting agreements of all of the fiduciary duties officers, directors and shareholders holding more than 10% of the members issued and outstanding shares of Common Stock on the date hereof to vote all Common Stock owned by each of such officers, directors and shareholders in favor of Shareholder Approval amounting to, in the aggregate, at least 50% of the CBTC Board under applicable lawissued and outstanding Common Stock.
Appears in 1 contract
Shareholder Approval. CBTC (a) Sound Bank agrees to take, in accordance with applicable law Law, the Articles of Incorporation and the CBTC Articles and the CBTC BylawsBylaws of Sound Bank, all action necessary to convene an appropriate a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCSound Bank’s shareholders for in order to permit consummation of the Merger transactions contemplated hereby (including any adjournment or postponement, the “CBTC Sound Bank Meeting”)) and shall take all lawful action to solicit such approval by such shareholders. Sound Bank agrees to use commercially reasonable efforts to convene the Sound Bank Meeting by the later of: (i) 90 days following the date of this Agreement or (ii) 60 days following the date of the Fairness Order issued by the Securities Administrator. Except with the prior approval of West Town, as promptly as practicable after no matters other than the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the approval of this Agreement and the transactions contemplated hereby; thereby and a proposal to authorize adjournment of the Sound Bank Meeting, if necessary or appropriate, shall be submitted for the approval of Sound Bank shareholders at the Sound Bank Meeting. Except to the extent otherwise provided that in this Section 5.04 or in Section 5.09, the CBTC Board may fail board of directors of Sound Bank, as a group, shall at all times prior to make such recommendation, or changeand during the Sound Bank Meeting recommend approval of this Agreement by the shareholders of Sound Bank and shall not withhold, withdraw, qualify or amend, modify, change or publicly propose to change, withdraw, qualify or modify, such recommendation in a manner that is adverse to United, in any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted the interests of West Town or any Subsidiary or take any other action or make any other public statement inconsistent with and considered such recommendation. In the advice of its outside legal counselevent that there is present at such meeting, determined in person or by proxy, sufficient favorable voting power to secure the Requisite Sound Bank Shareholder Approval, Sound Bank will not adjourn or postpone the Sound Bank Meeting unless Sound Bank is advised by counsel that the failure to make an Adverse Recommendation Change do so would be reasonably likely to constitute result in a breach of the fiduciary duties of Sound Bank’s board of directors. Sound Bank shall keep West Town updated with respect to the members of proxy solicitation results in connection with the CBTC Board under applicable law; provided that: Sound Bank Meeting as reasonably requested by West Town.
(ab) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writingNotwithstanding Section 5.04(a), and identify in addition to its rights under Section 5.09(f) below, if, since the Person making such Superior Proposaldate of the Original Agreement, if applicable (it there have been changes, occurrences, effects or events that have resulted in, or that would reasonably be expected to result in, West Town being understood that any amendment subject to any material term a Material Adverse Effect, and Sound Bank's board of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines directors reasonably concludes in good faith, after consultation with and the receipt of the advice of its outside legal counsel and financial advisors and outside counseladvisers, that a recommendation of approval of this Agreement by the failure to take such action shareholders of Sound Bank would be reasonably likely to constitute a breach of violate the directors' fiduciary duties of the members of the CBTC Board to Sound Bank or to its shareholders under applicable law, then Sound Bank’s board of directors may withdraw, qualify or revise its recommendation and submit the Agreement to shareholders at the Sound Bank Meeting without recommendation or with a recommendation against approval and communicate the basis for its lack of a recommendation or adverse recommendation to the shareholders in its proxy statement or an appropriate amendment or supplement thereto. In addition, following a termination of this Agreement by Sound Bank in the manner provided in Section 7.01(k), its board of directors may withdraw its recommendation and not submit this Agreement and the Merger to a vote of Sound Bank's shareholders.
Appears in 1 contract
Shareholder Approval. CBTC agrees (a) Tsunami shall, as promptly as possible but not later than three (3) days following the execution of this Agreement, submit this Agreement and the transactions contemplated hereby to takethe Tsunami shareholders for approval and adoption as provided by California law and its Articles of Incorporation and Bylaws. Tsunami shall use its best efforts to solicit and obtain the consent of the Tsunami shareholders sufficient to approve the Merger and this Agreement and to enable the Closing to occur as promptly as practicable and, in accordance any event, on or before February 15, 2002. Tsunami shall ensure that any meeting of the Tsunami shareholders called for the purpose of approving the Merger and this Agreement, or the solicitation of written consents of the Tsunami shareholders without a meeting, is conducted, and that all proxies solicited by Tsunami in connection with any such meeting are solicited, in compliance with applicable law and the CBTC Articles Tsunami charter documents. Tsunami's obligation to call, give notice of, convene and hold a shareholders' meeting, or to solicit the CBTC Bylaws, all action necessary to convene an appropriate meeting written consent of its shareholders without a meeting, in accordance with this provision shall not be limited to consider and vote upon or otherwise affected by the approval commencement, disclosure, announcement or submission to Tsunami of this Agreement and any other matters required Tsunami Acquisition Proposal.
(b) Prior to be approved by CBTC’s shareholders for consummation or at the time of the Merger initial solicitation of Tsunami's shareholders, Tsunami shall prepare and provide to its shareholders a solicitation statement (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the "Solicitation Statement") describing this Agreement and the transactions contemplated hereby; provided that hereby and thereby for the CBTC Board purpose of soliciting the approval of Tsunami shareholders. The Solicitation Statement shall constitute a disclosure document for the offer and issuance of shares of Stratos Common Stock to be received by the holders of Tsunami Capital Stock in the Merger. Stratos and Tsunami shall each use reasonable commercial efforts to cause the Solicitation Statement to comply with applicable federal and state securities laws requirements. Each of Stratos and Tsunami will reasonably cooperate with the other in connection with the preparation of the Solicitation Statement and agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may fail be required or appropriate for inclusion in the Solicitation Statement or in any amendments or supplements thereto, which information shall be true and correct in all material respects without the omission of any material fact which is required to make such recommendationinformation not false or misleading. Tsunami will promptly advise Stratos, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modifyand Stratos will promptly advise Tsunami, in a manner writing if at any time prior to the Effective Time either Tsunami or Stratos shall obtain knowledge of any facts that is adverse might make it necessary or appropriate to United, any such amend or supplement the Solicitation Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Solicitation Statement shall contain the unanimous recommendation (an “Adverse Recommendation Change”), if of the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined Directors of Tsunami that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach Tsunami shareholders approve the Merger and this Agreement and the unanimous conclusion of the fiduciary duties Board of the members Directors of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood Tsunami that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board Merger are fair and reasonable to proceed without an Adverse Recommendation Change (it being understood that United the Tsunami shareholders. Anything to the contrary contained herein notwithstanding, Tsunami shall not be required include in the Solicitation Statement any information with respect to propose any Stratos or its affiliates or associates, the form and content of which information shall not have been approved by Stratos prior to such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawinclusion.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Stratos Lightwave Inc)
Shareholder Approval. CBTC agrees (a) As promptly as reasonably practicable (but in no event later than ten calendar days after the execution of this Agreement, the Company shall prepare the Proxy Statement in preliminary form and file it with the SEC. The Board shall make the Company Board Recommendation to takethe Company’s shareholders and shall include such recommendation in the Proxy Statement. Each Investor shall, upon specific written request thereof, provide to the Company any information as may be reasonably requested by the Company in connection with the preparation of, and required for inclusion in, the Proxy Statement; provided, however, that the Company shall not use any such information for any purposes other than those contemplated by this Section 5.03 unless (i) the Company obtains the prior written consent of the applicable Investor to such use, or (ii) to the extent that use of such information is required to, as reasonably determined upon the advice of outside counsel, avoid violation of applicable Law. Each of the Company and the Investors shall promptly, upon having actual knowledge thereof, correct any information provided by it for use in the Proxy Statement if and to the extent such information shall have become false or misleading in any material respect. Subject to Section 5.12, the Company shall notify each Investor promptly upon the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement and shall supply each Investor with copies of all written correspondence, and a summary of any oral comments, between the Company or any of its Representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. The Company shall use its reasonable best efforts to (A) respond as promptly as reasonably practicable to any comments received from the SEC concerning the Proxy Statement and to promptly resolve such comments with the SEC and (B) cause the Proxy Statement to comply in all material respects with the Exchange Act and other applicable Law. Xxxxxxx and its counsel shall be given a reasonable opportunity to review any such comments and responses and the Company shall consider in good faith any such comments or responses and make the reasonable additions, deletions or changes suggested thereto by Xxxxxxx or its counsel. The Company shall use reasonable best efforts to cause the Proxy Statement to be disseminated to its shareholders as promptly as reasonably practicable after the resolution of any such comments, but in no event later than two (2) Business Days after the earlier of (x) the SEC confirming that it has no further comments to the Proxy Statement and (y) the tenth (10th) day after the filing of the Proxy Statement with the SEC if at such time the SEC has not provided any comments to the Proxy Statement. Prior to the filing of the preliminary form or any subsequent version of the Proxy Statement (or any amendment or supplement thereto) or any dissemination thereof to the shareholders of the Company, or responding to any comments from the SEC with respect thereto, the Company shall provide Xxxxxxx with a reasonable opportunity to review and to propose comments on such document or response, which the Company shall consider in good faith.
(b) The Company shall, as promptly as reasonable practicable after the definitive Proxy Statement has been disseminated to the Company’s shareholders (and in any event no later than twenty (20) days thereafter), take all necessary actions in accordance with applicable law and Law, the CBTC Articles and the CBTC Bylawsrules and regulations of NASDAQ to duly call, all action necessary to give notice of, set a record date for, convene an appropriate and hold a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment adjournment, recess or postponementpostponement thereof, the “CBTC Company Shareholders’ Meeting”)) for the purpose of obtaining the Shareholder Approval. The Company shall use its reasonable best efforts to promptly (and in any event within the time period described in the prior sentence) obtain the Shareholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may, adjourn, recess, or postpone the Company Shareholders’ Meeting (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement under applicable Law, as promptly as practicable determined by the Company in good faith and after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted consultation with and considered taking into account the advice views of its outside legal counsel and of Xxxxxxx and its outside legal counsel, determined that is provided to the failure to make an Adverse Recommendation Change would be reasonably likely shareholders of the Company within a reasonable amount of time in advance of the Company Shareholders’ Meeting, (ii) if as of the time for which the Company Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Common Shares represented (either in person or by proxy) to constitute a breach quorum necessary to conduct the business of the fiduciary duties Company Shareholders’ Meeting, (iii) to solicit additional proxies necessary to obtain the Shareholder Approval or (iv) with the prior written consent of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawXxxxxxx.
Appears in 1 contract
Shareholder Approval. CBTC agrees to take, in accordance with applicable law and the CBTC Articles and the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTC’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly a) As soon as practicable after the Registration Statement is declared effectiveexecution of this Agreement, Parent shall prepare a notice of Extraordinary General Meeting (as defined below) and circular to shareholders relating to the shareholders meeting of Parent to be held in order to grant the authority to the directors of the Parent to complete the Financing (collectively with any amendments or supplements thereto, the “EGM Circular”) and mail or cause to be mailed the EGM Circular to its shareholders.
(b) Parent shall use its best efforts to cause the EGM Circular to comply with applicable laws. The CBTC information in the EGM Circular shall not, at (i) the time the EGM Circular is first mailed to the shareholders of the Parent, (ii) the time of the Extraordinary General Meeting, and (iii) the Closing Date contain any untrue statement of a material fact or omit to state any material fact required to be stated therein given the purpose of the EGM Circular or necessary in order to make the statements therein not misleading. Parent will promptly advise Seller in writing if at any time prior to the Closing Date Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the EGM Circular in order to make the statements contained or incorporated by reference therein not misleading in any material respect or to comply with applicable law.
(c) The EGM Circular shall contain the unanimous recommendation of the Board shall recommend of Directors of Parent that the CBTC Parent shareholders approve and adopt vote in favor of the Agreement and resolutions contained in the transactions contemplated hereby; provided that EGM Circular. Anything to the CBTC Board may fail to make such recommendationcontrary contained herein notwithstanding, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, Parent shall not include in a manner that is adverse to United, the EGM Circular any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor information with respect to financial matters Seller or its Affiliates, the form and having consulted with and considered the advice content of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) which information shall not have been approved by Seller prior to making an Adverse Recommendation Change, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawinclusion.
Appears in 1 contract
Shareholder Approval. CBTC agrees Within two (2) business days following execution of this Agreement, Lincoln shall deliver to take, in accordance with applicable law each Consenting Shareholder the Merger Consent and use commercially reasonable efforts to obtain a duly executed and dated Merger Consent from all Consenting Shareholders promptly after the CBTC Articles execution hereof. The parties intend that those consents of Consenting Shareholders be executed and delivered to Lincoln and Phase Forward by Consenting Shareholders within two (2) business days after delivery of such consents to the CBTC Bylaws, all action necessary to convene an appropriate meeting of its shareholders to consider Consenting Shareholders and vote upon that pursuant thereto the approval of Consenting Shareholders irrevocably adopt and approve this Agreement and the Merger. Lincoln shall ensure that any other matters required to be approved shareholder consents delivered by CBTC’s shareholders for consummation the Consenting Shareholders are obtained in compliance with and are valid and effective under section 7.04 of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as MBCA and Lincoln’s articles of organization and bylaws then in effect. As promptly as practicable after the Registration Statement is declared effective. The CBTC Board execution and delivery to Lincoln and Phase Forward by the Consenting Shareholders of such consents (but in no event later than one business day thereafter), Lincoln shall recommend prepare and mail to every Lincoln Shareholder as of the record date (other than the Consenting Shareholders) the notices required by sections 7.04 and Part 13 of the MBCA, informing them that the CBTC shareholders approve and adopt the this Agreement and the transactions contemplated hereby; provided Merger were adopted and approved by the Consenting Shareholders, describing in reasonable detail the Merger and the Merger Consents, informing them that appraisal rights are available for their Lincoln Common Stock pursuant to Part 13 of the CBTC Board MBCA and providing them such additional information as may fail be necessary for them to make an informed decision whether to exercise appraisal rights under Part 13 of the MBCA. Lincoln shall afford Phase Forward and its counsel a reasonable opportunity to review and comment upon such recommendationnotices or other materials prior to such materials being delivered to the Lincoln Shareholders. Lincoln shall, through its Board of Directors, recommend to the Lincoln Shareholders the approval and adoption of this Agreement. Except in connection with the termination of this Agreement pursuant to Section 12.1, neither the Board of Directors of Lincoln nor any committee or change, withdraw, qualify or modify, or publicly propose to change, subcommittee thereof shall withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation ChangePhase Forward, the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery approval of such notice, which notice shall specify any material terms and conditions Board of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making Directors or such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions committee or subcommittee of this Agreement as would enable or the CBTC Merger or the recommendation of such Board of Directors to proceed without an Adverse Recommendation Change (it being understood the Lincoln Shareholders that United shall not be required to propose any such adjustments); they approve and (c) adopt this Agreement and the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawMerger.
Appears in 1 contract
Samples: Merger Agreement (Phase Forward Inc)
Shareholder Approval. CBTC agrees to (a) Following the execution of this Agreement, Piedmont shall take, in accordance with applicable law and the CBTC Piedmont Articles and the CBTC Piedmont Bylaws, all action necessary to convene an appropriate a special meeting of its shareholders as promptly as practicable after the Registration Statement is declared effective by the SEC to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCPiedmont’s shareholders in order to permit consummation of the Merger and the transactions contemplated hereby (including any adjournment or postponement thereof, the “Piedmont Meeting”) and shall take all lawful action to solicit such approval by such shareholders. Piedmont shall use its reasonable best efforts to obtain the Requisite Piedmont Vote, and shall ensure that the Piedmont Meeting is called, noticed, convened, held and conducted, and that all proxies solicited by Piedmont in connection with the Piedmont Meeting are solicited in compliance with the GBCA, the Piedmont Articles and the Piedmont Bylaws, and all other applicable legal requirements. Except with the prior approval of United, no other matters shall be submitted for the approval of Piedmont shareholders at the Piedmont Meeting.
(b) Except as otherwise provided in Section 7.05, (i) the board of directors of Piedmont shall at all times prior to and during the Piedmont Meeting recommend approval of this Agreement by the shareholders of Piedmont and any other matters required to be approved by Piedmont’s shareholders for consummation of the Merger (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement and the transactions contemplated herebyhereby (the “Piedmont Board Recommendation”) and (ii) shall not withhold, withdraw, amend, modify, change or qualify such recommendation in a manner adverse in any respect to the interests of United or take any other action or make any other public statement inconsistent with such recommendation and the Proxy Statement shall include the Piedmont Board Recommendation. Piedmont shall adjourn or postpone the Piedmont Meeting, if, as of the time when such meeting is originally scheduled there are insufficient shares of Piedmont Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting Piedmont has not received proxies representing a sufficient number of shares necessary to obtain the Requisite Piedmont Vote. Subject to the terms and conditions of this Agreement, Piedmont shall continue to use reasonable best efforts to solicit proxies from its shareholders in order to obtain the Requisite Piedmont Vote; provided that the CBTC foregoing shall not restrict in any way each of Piedmont and the Piedmont Board may fail to make from making a Recommendation Change permitted by Section 7.05(e) and disclosing such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modifyRecommendation Change and the basis and reasons therefor. In the event that there is present at such meeting, in a manner person or by proxy, sufficient favorable voting power to secure the Requisite Piedmont Vote, Piedmont will not adjourn or postpone the Piedmont Meeting unless Piedmont is advised by counsel that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change do so would reasonably be reasonably likely expected to constitute result in a breach of the fiduciary duties of the members board of directors of Piedmont. Piedmont shall keep United updated with respect to the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, proxy solicitation results in connection with the CBTC Board shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery of such notice, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred to in this Section 7.02 shall be reduced to three (3) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if Piedmont Meeting as reasonably requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law.
Appears in 1 contract
Shareholder Approval. CBTC agrees If required by the applicable NASD Market Place Rules and/or Nasdaq's corporate governance rules, the Company and Subscriber agree that until the Company either obtains shareholder approval of the issuance of the Securities, or an exemption from NASDAQ's corporate governance rules as they may apply to takethe Shares and Warrants, and an opinion of counsel reasonably acceptable to Subscriber that the issuance of the Shares and Warrants will not violate NASDAQ's corporate governance rules nor may result in accordance a delisting of the Company's common stock from the SmallCap (the "Approval"), each Subscriber may not receive any Shares or Warrants. If the Approval is required by the applicable NASD Market Place Rules, and or Nasdaq's corporate governance rules, the Company covenants to use its best reasonable efforts to obtain the Approval to allow the issuance of the Shares and Warrants. If the Approval is required by the applicable NASD Market Place Rules and/or the Nasdaq's corporate governance rules, the Company further covenants to file the preliminary proxy statement relating to the Approval with the Commission on or before thirty (30) days after the Closing Date ("Proxy Filing Date"). If the Approval is required by the applicable law and NASD Market Place Rules and/or the CBTC Articles and Nasdaq's corporate governance rules, the CBTC BylawsCompany further covenants to use its best reasonable efforts to obtain the Approval not later than the sooner of seventy-five (75) days from the Closing Date ("Approval Date"). If the Approval is required by the applicable NASD Market Place Rules and/or Nasdaq's corporate governance rules, all action necessary the Company's failure to (i) file the proxy on or before the Proxy Filing Date; or (ii) the Company's failure to convene an appropriate a meeting of its or shareholders to consider with a quorum present and vote upon the approval Approval within seventy-five (75) days, or in the case of this Agreement an SEC review, one hundred and five (105) days after the Closing Date; or (iii) the Company's failure to obtain the Approval on or before the Approval Date (any other matters required to be approved by CBTC’s shareholders for consummation of the Merger preceding being an "Approval Default") shall be deemed a rejection (including any adjournment or postponement, the “CBTC Meeting”), as promptly as practicable after the Registration Statement is declared effective. The CBTC Board shall recommend that the CBTC shareholders approve and adopt the Agreement "Rejection") and the transactions contemplated hereby; provided that the CBTC Board may fail to make such recommendation, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, in a manner that is adverse to United, any such recommendation (an “Adverse Recommendation Change”), if the CBTC Board has, after having consulted with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, determined that the failure to make an Adverse Recommendation Change would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable law; provided that: (a) prior to making an Adverse Recommendation Change, the CBTC Board Company shall provide written notice to United (a “Notice of Recommendation Change”) of its intent to announce an Adverse Recommendation Change on the fifth (5th) business day following delivery immediately notify each Subscriber of such noticeApproval Default; provided, which notice shall specify any material terms and conditions of any applicable Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing), and identify the Person making such Superior Proposal, if applicable (it being understood however that any amendment to any material term of Subscriber may waive such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, Rejection During the five ten (5) business day period referred to in this Section 7.02 shall be reduced to three (310) business days following its receipt of notification from the delivery of Company that such new Notice of Recommendation Change); (b) after providing Approval Default has occurred, in which case the Company shall remain obligated to such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) Subscriber to use its best reasonable efforts to file the proxy and provide United reasonable opportunity during obtain the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement Approval as would enable the CBTC Board to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and (c) the CBTC Board, following such five (5) business day period, determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to take such action would be reasonably likely to constitute a breach of the fiduciary duties of the members of the CBTC Board under applicable lawset forth above.
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Shareholder Approval. CBTC (a) Seller agrees to take, in accordance with applicable law and the CBTC Seller Articles and the CBTC Seller Bylaws, all action necessary to convene an appropriate as soon as reasonably practicable after the Registration Statement becomes effective, a meeting of its shareholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by CBTCSeller’s shareholders for consummation of the Merger Transaction (including any adjournment or postponement, the “CBTC Seller Meeting”), as promptly as practicable and will in any event use reasonable best efforts to convene the Seller Meeting no later than sixty (60) calendar days after the Registration Statement is declared effective. The CBTC Except with the prior approval of Purchaser Parent, no other matters shall be submitted for the approval of the Seller shareholders at the Seller Meeting. Subject to Section 6.02(b), the Seller Board shall at all times prior to and during such Seller Meeting recommend that such approval and shall take all reasonable lawful action to solicit such approval by its shareholders and shall not (x) withdraw, modify or qualify in any manner adverse to Purchaser Parent such recommendation or (y) take any other action or make any other public statement in connection with the CBTC Seller Meeting inconsistent with such recommendation (collectively, a “Change in Recommendation”), except as and to the extent permitted by Section 6.02(b). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the Seller shareholders approve and adopt at the Seller Meeting for the purpose of approving the Agreement and any other matters required to be approved by Seller’s shareholders for consummation of the transactions contemplated hereby; provided that Transaction. In addition to the CBTC foregoing, Seller shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(b) Notwithstanding the foregoing, Seller and the Seller Board may fail shall be permitted to make such recommendationeffect a Change in Recommendation if and only if, or change, withdraw, qualify or modify, or publicly propose to change, withdraw, qualify or modify, following the receipt of an Acquisition Proposal:
(i) Seller shall have complied in a manner that is adverse to United, any such recommendation all material respects with Section 6.07;
(an “Adverse Recommendation Change”), if ii) the CBTC Board hasSeller Board, after having consulted consulting with its financial advisor with respect to financial matters and having consulted with and considered the advice of its outside legal counsel, shall have determined in good faith that the failure to make an Adverse Recommendation Change do so would be reasonably more likely than not to constitute a breach of be inconsistent with the directors’ fiduciary duties of the members of the CBTC Board under applicable law; provided that: ;
(aiii) prior to making an Adverse Recommendation Change, the CBTC Seller Board shall provide written notice have concluded in good faith, after giving effect to United all the adjustments which may be offered by Purchaser Parent pursuant to clause (v) below, that such Acquisition Proposal constitutes a “Notice of Recommendation Change”Superior Proposal;
(iv) Seller shall notify Purchaser Parent, at least five (5) Business Days in advance, of its intent intention to announce an Adverse effect a Change in Recommendation Change on in response to such Superior Proposal (including the fifth (5thidentity of the party making such Acquisition Proposal) business day following delivery of such notice, which notice shall specify any and furnish to Purchaser Parent all the material terms and conditions of any applicable Superior Proposal such proposal; and
(and include v) prior to effecting such a copy thereof with all accompanying documentationChange in Recommendation, if in writing)Seller shall, and identify shall cause its financial and legal advisors to, during the Person making such Superior Proposalperiod following Seller’s delivery of the notice referred to in clause (iv) above, if applicable (it being understood that any amendment negotiate with Purchaser Parent in good faith for a period of up to any material term of such Superior Proposal shall require a new Notice of Recommendation Change, except that, in such case, the five (5) business day period referred Business Days (to in this Section 7.02 shall be reduced the extent Purchaser Parent desires to three (3negotiate) business days following the delivery of such new Notice of Recommendation Change); (b) after providing such Notice of Recommendation Change, CBTC shall negotiate in good faith with United (if requested by United) and provide United reasonable opportunity during the subsequent five (5) business day period to make such adjustments in the terms and conditions of this Agreement as would enable the CBTC Board so that such Acquisition Proposal ceases to proceed without an Adverse Recommendation Change (it being understood that United shall not be required to propose any such adjustments); and constitute a Superior Proposal.
(c) Purchaser Parent agrees to take, in accordance with applicable law and the CBTC BoardPurchaser Parent Certificate and Purchaser Parent Bylaws, following such five (5) business day period, determines in good faith, after consultation with all action necessary to convene as soon as reasonably practicable a meeting of its financial advisors shareholders to consider and outside counsel, that vote upon the failure to take such action would be reasonably likely to constitute a breach approval of the fiduciary duties issuance of the members Purchaser Parent Common Stock in the Merger and any other matters required to be approved by Purchaser Parent’s shareholders for consummation of the CBTC Transaction (including any adjournment or postponement, the “Purchaser Parent Meeting”) and will in any event use reasonable best efforts to convene such meeting no later than sixty (60) calendar days after the Registration Statement is declared effective. The Purchaser Parent Board under applicable lawshall at all times prior to and during the Purchaser Parent Meeting recommend approval of the issuance of the Purchaser Parent Common Stock in the Merger and any other matters required to be approved by Purchaser Parent’s shareholders for consummation of the Transaction and shall take all reasonable lawful action to solicit such approval by its shareholders.
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Samples: Agreement and Plan of Reorganization (Pacific Premier Bancorp Inc)
