Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 3 contracts
Sources: Merger Agreement (Veritex Holdings, Inc.), Merger Agreement (Huntington Bancshares Inc /Md/), Merger Agreement (Veritex Holdings, Inc.)
Acquisition Proposals. (a) Veritex Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or substantially concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Company shall have provided notice to Parent of its intention to provide such information, and shall have provided such information to HuntingtonParent if not previously provided to Parent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexCompany. Veritex Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex result in an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexlaw, to (x) enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with the terms thereof. During the term of this Agreementits terms, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.10(a)) relating to any Veritex Acquisition Proposal. ).
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal, inquiry or proposal relating to, or any third party indication of interest ininterest, made by a person (or a group of persons acting in concert within the meaning of Rule 13d-5 of the Exchange Act) relating to (i) any acquisition or purchase, direct or indirect, of twenty-five twenty percent (2520%) or more of the consolidated assets of Veritex Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of VeritexCompany, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five twenty percent (2520%) or more of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of VeritexCompany, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.or
Appears in 2 contracts
Sources: Merger Agreement (Canadian Imperial Bank of Commerce /Can/), Merger Agreement (Privatebancorp, Inc)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt approval of this Agreement by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition ProposalProposal that was not the result of a willful or material breach of this Section 6.12, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that if its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof Proposal (including the material terms and conditions of of, and the identity of the person making making, such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington Parent reasonably apprised of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall (A) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving the Company and (B) use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex .
(b) The Company shall not, and none of the Board of Directors of the Company or any committee thereof shall cause its Subsidiaries and its and their Representatives not to on its behalfor permit the Company to, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)an Acceptable Confidentiality Agreement) relating to any Veritex Acquisition Proposal. Proposal made to the Company.
(c) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 20% or more of the consolidated assets of Veritex the Company and its Subsidiaries or 2520% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company.
Appears in 2 contracts
Sources: Merger Agreement (Franklin Financial Network Inc.), Merger Agreement (FB Financial Corp)
Acquisition Proposals. (a) Veritex shall Kinderhook agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) continue, engage or participate in any negotiations with any person concerning or concerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person (other than Persons who are Affiliates or Representatives of Kinderhook or Community) relating to, or (iv) approve, recommend, agree to or accept, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to to, but not after, the receipt of time the Requisite Veritex VoteKinderhook Shareholder Approval is obtained, in the event Veritex if Kinderhook receives an unsolicited bona fide written Veritex Acquisition Proposal after the date of this Agreement that was not received in violation of clauses (i) – (iv) above, and Kinderhook’s Board of Directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it Kinderhook may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data to and participate in such negotiations or discussions with the Person making such Acquisition Proposal to the extent that its the Board of Directors of Kinderhook concludes in good faith (after receiving the advice of its outside counselcounsel and, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Kinderhook shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement Agreement and shall provide to Community any such information not provide such person with any exclusive right previously provided to negotiate with VeritexCommunity. Veritex will, and Kinderhook will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Community with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Kinderhook shall use its reasonable best efforts, subject to applicable law Law, to, within ten (10) Business Days after the date hereof, request and confirm the fiduciary duties return or destruction of the Board of Directors of Veritex, any confidential information provided to enforce any Person (other than Community and its Affiliates and its and their Representatives) pursuant to any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and shall withdraw and terminate any access that was granted to any third party to any “data room” (electronic or physical) that was established in accordance connection with a transaction involving Kinderhook.
(b) Kinderhook shall promptly, and in any event within forty-eight (48) hours of receipt, advise Community in writing in the event Kinderhook or any of its directors, employees, officers or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (iii) any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Community with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). During Kinderhook shall keep Community informed (orally and in writing) in all material respects on a timely basis of the term status and details (including, within forty-eight (48) hours after the occurrence of any amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, Kinderhook shall promptly (and in any event within forty-eight (48) hours) notify Community orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(c) Neither the Board of Directors of Kinderhook nor any committee thereof shall (i) except as expressly permitted by Section 4.5(a), (A) withdraw (or modify or qualify in any manner adverse to Community) the approval, recommendation or declaration of advisability by the Board of Directors of Kinderhook or any such committee of this Agreement, Veritex shall notthe Merger, and shall or any of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal, (C) resolve, agree or propose to take any such actions or (D) submit this Agreement to its shareholders without recommendation (each such action set forth in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) (A) cause or permit Kinderhook or any of its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry Contract constituting or proposal relating to, or which is intended to or is reasonably likely to lead to, any third party indication Acquisition Proposal or (B) resolve, agree or propose to take any such actions.
(d) Kinderhook agrees that any breach by its directors, officers, employees, Affiliates or Representatives of interest in, this Section 4.11 shall be deemed a breach by Kinderhook.
(ie) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex Nothing contained in this Agreement shall prevent Kinderhook or its Subsidiaries whose assetsBoard of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to Kinderhook’s shareholders; provided, individually that such rules will in no way eliminate or in modify the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) effect that any tender offer or exchange offer that, if consummated, action pursuant to such rules would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexotherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Community Bank System, Inc.), Merger Agreement
Acquisition Proposals. (a) Veritex shall The Company agrees that, except as expressly contemplated by this Agreement, it and each of its Subsidiaries will not, and it shall cause its Subsidiaries direct and use its commercially reasonable best efforts to cause its and their its Subsidiaries' officers, directors, agentsemployees, advisors and investment bankers, attorneys, accountants, financial advisors, agents or other representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate any inquiries or proposals the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving the Company, or any purchase (pursuant to a new issuance, tender offer, takeover bid or otherwise) of, or offer to purchase, 20% or more of the voting securities of the Company, or any business that constitutes 20% or more of the Company's consolidated net revenues, net income or shareholders' equity (as reflected on the financial statements included in the Company Form 10-K) (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its commercially reasonable best efforts to cause its and its Subsidiaries Representatives not to, directly or indirectly, have any discussions with or provide any confidential information or data to any Person relating to an Acquisition Proposal, engage in any negotiations concerning an Acquisition Proposal, otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or enter into any agreement with respect to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or its board of directors from (i) making any disclosure to its shareholders if, in the good faith judgment of its board of directors, failure so to disclose would be inconsistent with its obligations under applicable Law or the listing rules of the NYSE; provided, however, that it shall use commercially reasonable best efforts to notify Parent of such obligation and the substance of the planned disclosure as promptly as practicable (and in any event prior to making any such disclosure); (ii) engage prior to the Company Shareholder Meeting discussing or participate in negotiating with or furnishing information to any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that Person who has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex bona fide unsolicited written Acquisition Proposal of which did not, directly or indirectly, result from or follow a breach by the existence of the provisions Company of this Section 6.12(a6.3(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to that no information shall be furnished nonpublic information or data and participate in to any Person unless such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Person shall have entered into a confidentiality agreement with such third party on the Company, containing terms no less favorable to it than and conditions of substantially the same effect as those of the Confidentiality Agreement; or (iii) recommending (but only at a time that is after the fifth Business Day following Parent's receipt of written notice advising Parent that the Company's board of directors is prepared to recommend a Superior Proposal) such an Acquisition Proposal to its shareholders, which confidentiality agreement shall not provide if and only to the extent that, in the case of actions referred to in clause (ii) or clause (iii), such person Acquisition Proposal is or, in the case of clause (ii) would reasonably be expected to result in, a Superior Proposal and the board of directors of the Company determines in good faith, after consultation with outside legal counsel, that failure to do so (and, in the case of clause (ii), failure to continue to do so) would be inconsistent with their fiduciary duties under applicable Law. For purposes of this Agreement, a "Superior Proposal" means any exclusive right Acquisition Proposal by a third party (x) that would, if consummated, be more favorable than the Merger to negotiate the Company's shareholders, in the good faith judgment the Company's board of directors, after consultation with Veritex. Veritex willits financial advisors, and (y) which the board of directors of the Company determines in its good faith judgment to constitute a transaction that is reasonably capable of being consummated on the terms set forth, taking into account all legal, financial, regulatory and other aspects of such proposal. The Company agrees that it will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement by it or its Representatives with any person Person other than Huntington Parent conducted heretofore with respect to any Veritex Acquisition Proposal. Veritex The Company also agrees that it will (q) if it has not already done so, promptly (and request each Person, if any, that has heretofore executed a confidentiality agreement within the 12 months prior to the date hereof in any event within one (1) business day) advise Huntington following receipt connection with its consideration of any Veritex potential Acquisition Proposal to return or any inquiry which could reasonably be expected destroy all confidential information heretofore furnished to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions such Person by or on behalf of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is Subsidiaries; (r) promptly notify all Persons with whom it has a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement continuing standstill or other similar agreement (other than a confidentiality agreement referred pursuant to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or which any third party indication of interest in, is authorized to make any Acquisition Proposal that it is withdrawing any such authorization; and (is) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of take all commercially reasonable actions necessary to enforce the consolidated assets of Veritex and its Subsidiaries or 25% or more provisions of any class of equity or voting securities of Veritex or its Subsidiaries whose assetssuch continuing confidentiality, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization standstill or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexagreement.
Appears in 2 contracts
Sources: Merger Agreement (American General Corp /Tx/), Merger Agreement (American General Corp /Tx/)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the stockholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (New York Community Bancorp Inc), Merger Agreement (Astoria Financial Corp)
Acquisition Proposals. (a) Veritex shall notMLP GP and MLP shall, and they shall cause its the Subsidiaries and Representatives of MLP GP and MLP to, immediately cease and terminate any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to or that may reasonably be expected to lead to, an Acquisition Proposal.
(b) Neither MLP GP nor MLP shall, and they shall use its their commercially reasonable best efforts to cause its the Subsidiaries and their officers, directors, agents, advisors Representatives of MLP GP and representatives (collectively, “Representatives”) MLP not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries regarding, or proposals with respect the making or submission of any proposal or offer that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have conduct or participate in any discussions with, or negotiations regarding any person relating to, any Veritex Acquisition Proposal, except or (iii) furnish to notify a person that has made orany Person any non-public information or data relating to MLP or any of its Subsidiaries. Notwithstanding the foregoing, at any time prior to obtaining MLP Unitholder Approval, the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of MLP GP Conflicts Committee may take the existence of the provisions actions described in clauses (ii) and (iii) of this Section 6.12(a); provided, that, prior 6.6(b) with respect to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited any Person that makes a bona fide written Veritex Acquisition ProposalProposal that did not result from a material breach of this Section 6.6(b), it mayif (A) the MLP GP Conflicts Committee, after consultation with its outside legal counsel and may permit its Subsidiaries and its and its Subsidiaries’ Representatives tofinancial advisors, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes determines in good faith (after receiving that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and that the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not to result in a violation of inconsistent with its fiduciary duties under the MLP Partnership Agreement or applicable law; providedLaw, further, that, and (B) prior to or concurrently with providing furnishing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such non-public information to Huntingtonsuch Person, and shall have entered into a MLP receives from such Person an executed confidentiality agreement with such third party on reasonable customary terms no less favorable as to it than the Confidentiality Agreementtreatment of confidential information. MLP GP and MLP shall, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will as promptly as practicable (and in any event within one (1) business day) 48 hours), advise Huntington following receipt PAA in writing of any Veritex Acquisition Proposal received from any third Person, including the identity of such third Person, or any inquiry which could reasonably be expected request for discussions or negotiations with respect to lead to a Veritex any Acquisition Proposal, and the substance thereof (including the material terms and conditions of and such Acquisition Proposal or request, as well as the identity of the person Person making such inquiry proposal or Veritex Acquisition Proposal) request. MLP GP and will keep Huntington reasonably apprised MLP shall, as promptly as practicable (and in all events within 48 hours), provide to PAA copies of any related developmentswritten materials received by MLP GP, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it MLP or any of its their Subsidiaries is or Representatives in connection with any of the foregoing.
(c) MLP GP and MLP shall keep PAA reasonably informed of any material developments regarding or changes in any Acquisition Proposal on a party reasonably current basis (and in all events within 36 hours of such material development). MLP GP and MLP agree that they and their Subsidiaries will not enter into any confidentiality agreement with any Person that prohibits MLP GP or MLP or any of their Subsidiaries from providing any information to PAA in accordance with Section 6.5 or this Section 6.6.
(d) The MLP Parties acknowledge that the terms thereof. During agreements contained in this Section 6.6 are an integral part of the term of Merger Transactions, and that, without these agreements, the Buyer Parties would not have entered into this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Paa Natural Gas Storage Lp), Merger Agreement (Plains All American Pipeline Lp)
Acquisition Proposals. (a) Veritex shall NAL will not, and shall will cause its Subsidiaries and its and its Subsidiaries’ officers and directors not to and will use its reasonable best efforts to cause its and their officers, directorsits Subsidiaries’ employees, agents, advisors and representatives (collectively, “Representatives”) other Representatives and affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person ; provided that has made or, to in the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, thatevent, prior to the receipt time the NAL Requisite Vote is obtained but not after, (1) NAL receives, after the execution of the Requisite Veritex Votethis Agreement, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition ProposalProposal from a person other than FNFG, it and (2) the NAL Board concludes in good faith (A) that such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would result in a violation of the directors’ fiduciary duties under the DGCL, NAL may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) such Acquisition Proposal; provided that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality an agreement with such third party on terms no substantially similar to those contained in the Confidentiality Agreement (except that NAL may enter into a confidentiality agreement without a standstill provision or with a standstill provision less favorable to NAL if and only if it than first waives or similarly modifies the standstill provision in the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex). Veritex will, and NAL will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than Huntington FNFG with respect to any Veritex Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Veritex NAL will promptly (and in any event within one (1) business day) advise Huntington FNFG following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably FNFG apprised of any related developments, discussions and negotiations (including the terms and conditions of such Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall prevent NAL or the NAL Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act, including any amendments or other disclosure requirements under applicable law or the NYSE or the NASDAQ rules, with respect to or revisions of the material terms of such inquiry or Veritex an Acquisition Proposal. Veritex shall use its reasonable best efforts, subject ; provided that such rules will in no way eliminate or modify the effect that any action pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of such Rules would otherwise have under this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Newalliance Bancshares Inc), Merger Agreement (First Niagara Financial Group Inc)
Acquisition Proposals. (a) Veritex Anchor shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Anchor Vote, in the event Veritex Anchor receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Anchor shall have provided such information to HuntingtonOld National, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexAnchor. Veritex Anchor will, and will use its reasonable best efforts to cause its Subsidiaries and the Representatives of Anchor and its Subsidiaries to, (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Old National with respect to any Veritex Acquisition Proposal. Veritex will promptly , (B) request and in confirm the prompt return or destruction of all confidential information previously furnished with respect to any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition ProposalC) and will keep Huntington reasonably apprised of any related developmentsnot terminate, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.waive,
Appears in 2 contracts
Sources: Merger Agreement (Anchor Bancorp Wisconsin Inc), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Veritex shall Sabal Palm agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex Sabal Palm receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Sabal Palm Shareholder Approval, and Sabal Palm’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it Sabal Palm may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of Sabal Palm concludes in good faith (after receiving and based on the written advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation breach of its fiduciary duties obligations to the Sabal Palm Shareholders under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Sabal Palm shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and Sabal Palm will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will Sabal Palm shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. Sabal Palm agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by Sabal Palm.
(b) Notwithstanding the foregoing, including if Sabal Palm’s Board of Directors concludes in good faith (and based upon the written advice of its outside counsel and after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes or would reasonably be expected to constitute a Superior Proposal and that failure to accept such Superior Proposal would result in a breach of its fiduciary obligations under applicable Laws, Sabal Palm’s Board of Directors may at any amendments time prior to the Sabal Palm Shareholder Approval (i) withdraw or revisions of modify (a “Change in Recommendation”) the material terms of Sabal Palm Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the Sabal Palm Directors’ Recommendation, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of VeritexSabal Palm may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) Sabal Palm shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of Sabal Palm determines in good faith (after consultation with outside legal counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues or is reasonably expected to continue to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) Sabal Palm has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer or exchange offer thatsuch Superior Proposal (including the identity of the Person making such Superior Proposal)) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, if consummatedSabal Palm has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, Sabal Palm shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and Sabal Palm shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. Sabal Palm will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, after the date hereof and prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Company shall have provided such information to HuntingtonParent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexCompany. Veritex Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex Company will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised Parent promptly (and in any event within one (1) business day) advised of any related substantive developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Company shall (1) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving Company and (2) use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of VeritexCompany Board, to enforce any existing confidentiality or (to the extent separate from a confidentiality agreement) standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofthereof and, in accordance therewith, cause any person (other than a party to this Agreement, its affiliates and representatives) to return or destroy non-public information regarding Company or any of its affiliates in connection with a potential transaction involving Company. During the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement agreement, or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.13(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry offer or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexCompany, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (more than 25%) or more % of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexCompany, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex Company or its Subsidiaries whose assets, either individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexCompany, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization.
Appears in 2 contracts
Sources: Merger Agreement (First Horizon National Corp), Merger Agreement (Capital Bank Financial Corp.)
Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex LSB will, and will use cause each of its reasonable best efforts to cause Subsidiaries to, and its Representatives and their respective officers, directors and representatives (including Sandler ▇’▇▇▇▇▇) to, immediately cease and cause to be terminated any activitiesexisting solicitations, discussions or negotiations conducted before with any Person that has made or indicated an intention to make an Acquisition Proposal (as defined below). During the period from the date of this Agreement with through the Effective Time, LSB shall not terminate, amend, modify or waive any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt material provision of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar agreement to which it LSB or any of its Subsidiaries is a party (other than any involving ONB).
(b) Except as permitted in accordance with the terms thereof. During the term of this AgreementSection 5.06, Veritex LSB shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including Sandler ▇’▇▇▇▇▇) not to, (i) solicit, initiate or knowingly encourage or facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the approval of the Merger by LSB’s shareholders, if LSB receives a bona fide Acquisition Proposal that the LSB Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of LSB’s obligations under this Section 5.06, LSB may furnish, or cause to be furnished, non-public information with respect to LSB and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to ONB prior to or at the same time it is provided to such Person) and their Representatives not may participate in discussions and negotiations regarding such proposal if (A) the LSB Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to LSB’s shareholders under applicable law and (B) prior to taking such action, LSB has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including Sandler ▇’▇▇▇▇▇) of LSB or its behalfSubsidiaries shall be a breach of this Section 5.06 by LSB.
(c) Neither the LSB Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw or modify in a manner adverse to ONB or propose to withdraw or modify in a manner adverse to ONB (or take any action inconsistent with) the recommendation by such LSB Board of Directors or any such committee of this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit LSB or Bank to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of LSB’s shareholders to approve the Merger, the LSB Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the LSB Board of Directors determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the shareholders of LSB under applicable Law, and provided, further, that the LSB Board of Directors may not effect such an Adverse Recommendation Change unless (A) the LSB Board shall have first provided prior written notice to ONB (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) ONB does not make, within five business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the LSB Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the LSB Board’s fiduciary duties to the shareholders of LSB under applicable law. As used LSB agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, LSB and its officers, directors and representatives shall negotiate in this Agreementgood faith with ONB and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by ONB.
(d) In addition to the obligations of LSB set forth in paragraphs (a), (b) and (c) of this Section 5.06, LSB shall as promptly as possible, and in any event within two business days after LSB first obtains knowledge of the receipt thereof, advise ONB orally and in writing of (i) any Acquisition Proposal or any request for information that LSB reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry LSB reasonably believes could lead to any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to LSB any offer, inquiry material change, modification or development to a previously made offer, letter of intent or any other material development, LSB (or its outside counsel) shall (A) advise and confer with ONB (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide ONB with true, correct and complete copies of any document or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit LSB from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the 1934 Act or from making any other disclosure to its shareholders or in any other regulatory filing if, in the good faith judgment of the LSB Board of Directors, after consultation with its outside counsel, failure to so disclose would be reasonably likely to result in a breach of their or LSB’s obligations under applicable law.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income or assets of Veritex LSB and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex LSB or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex LSB or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange or similar transaction involving Veritex LSB, Bank or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of LSB, Bank, or any of LSB’s other Subsidiaries or of any resulting parent company of LSB or Bank; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to ONB of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural Person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (LSB Financial Corp)
Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate Notwithstanding any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions other provision of this Section 6.12(a); providedAgreement, that, from and after the No-Shop Period Start Date and prior to the receipt of the Company Requisite Veritex Vote, the Company may, at the direction of the Special Committee, directly or indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 7.3(c), (A) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Special Committee reasonably determines in good faith (after consultation with its financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal and/or (B) furnish to any Person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Special Committee reasonably determines in good faith (after consultation with its financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposalaggregate to the Company than those contained in the Confidentiality Agreement, it mayprovided, and may permit that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) none of the Company, its Subsidiaries and or any representative of the Company or its and its Subsidiaries’ Representatives toSubsidiaries shall have breached or violated the terms of Section 7.3, furnish (2) the Company Board or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes Special Committee determines in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, (3) none of the Company or its Subsidiaries shall have entered into, or otherwise become bound by the terms of, an exclusivity agreement or other agreement restricting the ability of the Company and its Subsidiaries to negotiate, enter into and consummate a Veritex Acquisition Proposaltransaction with a third party other than such Person, (4) at least forty-eight (48) hours prior to engaging or participating in any such discussions or negotiations with, or furnishing any non-public information to, such Person, the Company provides Dimensional written notice of the identity of such Person and the substance thereof (including the material terms and conditions of such Acquisition Proposal, and the identity of the person making Company’s intention to engage or participate in discussions or negotiations with, or furnish non-public information to, such inquiry Person, (5) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Dimensional (but only to the extent such information has not been previously furnished by the Company to Dimensional), and (6) the Company shall keep Dimensional reasonably informed about the status and details of any such Acquisition Proposal and any amendments or Veritex revisions thereto. Until any such Acquisition Proposal has been withdrawn, the Company shall promptly provide Dimensional a copy of all written materials subsequently provided by the Company to such Person in connection with such Acquisition Proposal) , request or inquiry, and will keep Huntington reasonably apprised a description of any related developments, discussions and negotiations on a current basis, including any material amendments or proposed material amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject request or inquiry (but only to applicable law and the fiduciary duties of extent such information has not been previously furnished by the Board of Directors of Veritex, Company to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(aDimensional)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Dimensional Associates, LLC), Merger Agreement (Orchard Enterprises, Inc.)
Acquisition Proposals. (a) Veritex shall NewBridge agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of obtaining the Requisite Veritex NewBridge Vote, in the event Veritex NewBridge receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and NewBridge shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexNewBridge. Veritex NewBridge will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Yadkin with respect to any Veritex Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Yadkin) pursuant to such agreement. Veritex NewBridge will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Yadkin following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal and copies of any written Acquisition Proposal) ), and will keep Huntington reasonably Yadkin apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex NewBridge and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexNewBridge, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexNewBridge, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex NewBridge or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexNewBridge.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Newbridge Bancorp), Merger Agreement (YADKIN FINANCIAL Corp)
Acquisition Proposals. (a) Veritex shall MainSource agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the shareholders of MainSource by the Requisite Veritex MainSource Vote, in the event Veritex MainSource receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and MainSource shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality AgreementAgreement and which is expressly assignable to First Financial, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexMainSource. Veritex MainSource will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington First Financial with respect to any Veritex Acquisition Proposal. Veritex MainSource will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington First Financial following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) Proposal and a copy thereof if in writing and any related documentation or correspondence), and will keep Huntington reasonably First Financial apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex MainSource shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 20% or more of the consolidated assets of Veritex MainSource and its Subsidiaries or 2520% or more of any class of equity or voting securities of Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource.
Appears in 2 contracts
Sources: Merger Agreement (Mainsource Financial Group), Merger Agreement (First Financial Bancorp /Oh/)
Acquisition Proposals. (a) Veritex From the date hereof until the termination hereof, the Company shall notnot and 9shall cause the subsidiaries not to, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their the officers, directors, agentsemployees and other agents and advisors (including, advisors without limitation, any investment bank, attorney or accountant retained by the Company) of the Company and representatives (collectively, “Representatives”) its subsidiaries not to, directly or indirectly, (i) initiate, take any action to solicit, initiate or knowingly encourage or otherwise knowingly facilitate any inquiries Acquisition Proposal or any inquiries, proposals with respect toor offers from any Person (other than Parent or Merger Sub) relating to any Acquisition Proposal, (ii) engage grant any waiver or participate in release under any negotiations standstill or similar agreement with respect to any person concerning class of equity securities of the Company or any subsidiary or (iii) provide furnish any confidential or nonpublic information or data to, or have to or participate in any discussions with, or negotiations with any person relating to, any Veritex Acquisition Proposal, except to notify a person Person that has made or, to the knowledge of Veritexthe Company, is making intends to make an Acquisition Proposal except to the extent the foregoing could not reasonably be expected to be relevant to an Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in this Section 5.3(a) shall prohibit the Board from taking any inquiries action described in clause (iii) above with respect toto any Person that has made an unsolicited (as such term relates to the period from and after the date hereof) bona fide written Superior Proposal if, or is considering making, a Veritex Acquisition Proposal of and only to the existence of the provisions of this Section 6.12(a); provided, extent that, prior (A) the acceptance for payment of any Shares pursuant to the receipt of Offer shall not have occurred, (B) the Requisite Veritex VoteBoard, after consultation with outside legal counsel, determines in good faith that such action would, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposalabsence of the foregoing proscriptions, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of required by its fiduciary duties under the DGCL or its duties or obligations under other applicable law; provided, further, that, and (C) prior to or concurrently with providing taking such action, the Company receives from such Person an executed confidentiality agreement in reasonably customary form and in any nonpublic information permitted event containing terms at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after determining to be provided pursuant to take any action described in clause (iii) of the foregoing provisopreceding sentence, Veritex the Company shall have provided notify Parent of any such information to HuntingtonSuperior Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Person making it), and shall have entered into thereafter inform Parent on a confidentiality agreement prompt basis of any material changes to the terms and conditions of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexparty. Veritex willThe Company shall, and will use its reasonable best efforts to shall cause its Representatives subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its subsidiaries to, immediately cease and cause to be terminated any activitiesall discussions and negotiations, discussions or negotiations conducted before if any, that have taken place prior to the date of this Agreement hereof with any person other than Huntington parties with respect to any Veritex Acquisition Proposal. Veritex will promptly (and Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rules 14d-9 or 14e-2 under the Exchange Act with respect to any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, including taking and disclosing to the Company's stockholders its position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or from referring a third party to this Section 5.3(a) or making a copy of this Section 5.3(a) available to any third party; PROVIDED, HOWEVER, that in connection therewith the Company and the substance thereof Board of Directors shall be subject to the provisions of Section 5.3(b).
(b) Notwithstanding anything in this Agreement to the contrary, the Board may not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, its approval or recommendation of this Agreement, the Offer or the Merger unless the Board, after consultation with its outside legal counsel, determines in good faith that such action is required by its fiduciary duties under the DGCL or under other applicable Law; PROVIDED, HOWEVER, the Board may not approve or recommend an Acquisition Proposal (or in connection therewith, withdraw or modify its approval or recommendation of this Agreement, the Offer or the Merger) (including with respect to any statements pursuant to Rule 14e-2 under the Exchange Act) unless (i) the Acquisition Proposal is a Superior Proposal, (ii) the Company has complied in all material respects with the terms of this Section 5.3, (iii) it determines in good faith (after consultation with its outside legal counsel) that such action is required by its fiduciary duties under the DGCL or under other applicable Law and (iv) the Company has negotiated, and the Board has determined to enter into, a definitive agreement with respect to the Superior Proposal; and PROVIDED FURTHER, (x) the Board in the twenty-four (24) hours subsequent to the determination described in clause (iv) of the foregoing proviso shall have notified Parent of such determination and of all the material terms and conditions of and such definitive agreement, (y) the identity Board shall be prohibited for a period of three (3) calendar days after the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised date of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms receipt by Parent of such inquiry notification from executing the definitive agreement relating to such Superior Proposal and from approving or Veritex Acquisition Proposal. Veritex shall use recommending such Superior Proposal (or, in connection therewith, withdraw or modify its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality approval or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term recommendation of this Agreement, Veritex the Offer or the Merger) and during such three (3) day period Parent shall notbe permitted to make any such adjustment to the terms and conditions of this Agreement as Parent deems advisable (the "Adjusted Agreement") and (z) the Board determines that the Acquisition Proposal reflected by the definitive agreement is a Superior Proposal relative to the Adjusted Agreement. In the event that the Board is permitted by the foregoing to approve or recommend an Acquisition Proposal, it may terminate this Agreement. In the event that the Board, pursuant to clause (z) of the second preceding sentence, determines that the Acquisition Proposal reflected by the definitive agreement is not a Superior Proposal relative to the Adjusted Agreement, the Company shall execute an amendment to this Agreement to conform this Agreement to the Adjusted Agreement and shall cause its Subsidiaries and its and their Representatives not terminate all discussions with such other Person, subject to on its behalf, enter into any letter the reinstitution of intent, memorandum of understanding, agreement discussions with such other Person in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance compliance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex5.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
Acquisition Proposals. (a) Veritex shall VBI agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex VBI receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the VBI Shareholder Approval, and VBI’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it VBI may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of VBI concludes in good faith (after receiving and based on the written advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation breach of its fiduciary duties obligations to the VBI shareholders under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and VBI shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and VBI will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will VBI shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. VBI agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by VBI.
(b) Notwithstanding the foregoing, including if VBI’s Board of Directors concludes in good faith (and based upon the written advice of its outside counsel and after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes or would reasonably be expected to constitute a Superior Proposal and that failure to accept such Superior Proposal would result in a breach of its fiduciary obligations under applicable Laws, VBI’s Board of Directors may at any amendments time prior to the VBI Shareholder Approval (i) withdraw or revisions of modify (a “Change in Recommendation”) the material terms of VBI Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the VBI Directors’ Recommendation, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of VeritexVBI may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) VBI shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of VBI determines in good faith (after consultation with outside legal counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues or is reasonably expected to continue to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) VBI has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer or exchange offer thatsuch Superior Proposal (including the identity of the Person making such Superior Proposal)) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, if consummatedVBI has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, VBI shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and VBI shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. VBI will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a6.11(a); provided, provided that, prior to the receipt approval of this Agreement by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition ProposalProposal that was not the result of a willful or material breach of this Section 6.11(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that if its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company shall provide three (3) Business Days written notice to Parent prior to entering into any Acceptable Confidentiality Agreement. The Company will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof Proposal (including the material terms and conditions of of, and the identity of the person making making, such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington Parent reasonably apprised of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best effortswithdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with an Acquisition Proposal.
(b) The Company shall not, subject to applicable law and the fiduciary duties none of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it the Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and committee thereof shall cause its Subsidiaries and its and their Representatives not to on its behalfor permit the Company to, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)an Acceptable Confidentiality Agreement) relating to any Veritex Acquisition Proposal. Proposal made to the Company.
(c) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (CapStar Financial Holdings, Inc.)
Acquisition Proposals. (a) Veritex shall Each party agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person (or Representative of such person) concerning or any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person (or Representative of such person) relating to, any Veritex Acquisition Proposal, except (iv) approve or execute or enter into any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other contract related to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal or (v) propose or agree to do any of the existence of the provisions of this Section 6.12(a)foregoing; provided, that, prior to the receipt of the Requisite Veritex Voteapplicable vote, in the event Veritex either party receives an unsolicited bona fide written Veritex Acquisition Proposal, it such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counselcounsel and, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and party shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexsuch party. Veritex Each party will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington United or Rockville, as applicable, with respect to any Veritex Acquisition Proposal. Veritex Each party will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington the other party following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Each party shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement .
(other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)b) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex a party and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe party, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe party.
Appears in 2 contracts
Sources: Merger Agreement (Rockville Financial, Inc. /CT/), Merger Agreement (United Financial Bancorp, Inc.)
Acquisition Proposals. (a) Veritex shall notCMS agrees that:
(i) neither it nor any of its Subsidiaries nor any of its officers and directors or the officers and directors of any of its Subsidiaries shall, and it shall cause its Subsidiaries direct and use its reasonable best efforts to cause its employees and their officers, directors, agents, advisors and representatives including any investment banker, attorney or accountant retained by it or by any of its Subsidiaries (collectively, its “Representatives”) not to, (A) initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries regarding or proposals the making or implementation of any Acquisition Proposal, (B) furnish information or access to any Person that has made an Acquisition Proposal to the CMS Board or that makes an Acquisition Proposal to the CMS Board after the date hereof, or (C) participate in discussions or negotiate with respect to, any Person concerning any Acquisition Proposal;
(ii) engage or participate in any negotiations with any person concerning or (iiinotwithstanding Section 6.06(a)(i) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, thatabove, prior to the receipt of the Requisite Veritex VoteCMS Stockholder Approval, CMS may, directly or indirectly through its Representatives, (A) furnish information and access to any Person that has made an Acquisition Proposal to the CMS Board or that makes an Acquisition Proposal to the CMS Board after the date hereof and (B) participate in the event Veritex receives an unsolicited bona fide written Veritex discussions and negotiate with such Person concerning any such Acquisition Proposal, it mayif and only if, in either such case set forth in clause (A) or (B) of this sentence, (1) such Acquisition Proposal did not result from a breach of this Section 6.06(a), (2) the CMS Board determines in good faith, after consultation with CMS’s financial and legal advisors, that such Acquisition Proposal constitutes, or is reasonably likely to lead to a Superior Proposal, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in (3) CMS receives from the Person making such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a an Acquisition Proposal an executed confidentiality agreement with such third party on the material terms of which are in all material respects (x) no less favorable to it CMS and (y) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement, which confidentiality agreement shall not provide between Customers and CMS and any information provided to such person Person has previously been provided to Customers or is provided to Customers concurrently with any exclusive right its provision to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of such Person;
(iii) notwithstanding anything in this Agreement with to the contrary, CMS shall (i) promptly (but in no event later than two (2) Business Days) advise Customers, orally and in writing, of (x) the receipt by it (or any person other than Huntington with respect to of its Representatives) of any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal , or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, or any material modification of or material amendment to any Acquisition Proposal, or any request for nonpublic information relating to CMS or any of its Subsidiaries or for access to the properties, books or records of CMS or any of its Subsidiaries by any Person or entity that informs the CMS Board or the board of directors of any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal and the substance thereof (including y) the material terms and conditions of such proposal or inquiry (whether written or oral) or modification or amendment to an Acquisition Proposal, and the identity (ii) keep Customers fully informed of the person making such inquiry or Veritex Acquisition Proposal) status and will keep Huntington reasonably apprised material details of any related developments, discussions such proposal or inquiry and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex developments with respect thereto; and
(iv) CMS shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During , and shall immediately take all steps necessary to terminate any approval that may have been given prior to the term date hereof under any such provisions authorizing any Person to make an Acquisition Proposal.
(b) Prior to the receipt of the CMS Stockholder Approval, CMS may terminate this Agreement, if (i) the CMS Board authorizes CMS, subject to complying with the terms of this Section 6.06, to enter into a definitive agreement with respect to a Superior Proposal and (ii) immediately prior to or concurrently with the termination of this Agreement, Veritex CMS enters into a definitive agreement with respect to a Superior Proposal.
(c) Except as expressly permitted by this Section 6.06(c), neither the CMS Board nor any committee thereof shall not(i) fail to make, withdraw, modify, qualify or place any condition on, or propose publicly to withhold, withdraw, modify, qualify or place any condition on, in any manner adverse to Customers or its affiliates, the approval and adoption of this Agreement and the transactions contemplated hereby, including the Parent Merger, or the CMS Recommendation, or (ii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal other than the Merger (any of the foregoing, a “Change in Recommendation”). Notwithstanding the preceding sentence, in the event that subsequent to the date of this Agreement the CMS Board determines in good faith after consultation with outside legal counsel that it would be inconsistent with its fiduciary duties to its stockholders under applicable law not to withdrawal, modify or qualify such recommendation, the CMS Board may, prior to the CMS Meeting, effect a Change in Recommendation. Nothing in this Section 6.06(c) shall restrict the right of Customers to receive the Termination Fee pursuant to Section 8.02. For the avoidance of doubt, this Section 6.06(c) shall not survive the termination of this Agreement. For purposes of this Agreement, a Change in Recommendation shall not include any notice provided with respect to any Acquisition Proposal and CMS’s views thereof prior to any definitive Change in Recommendation.
(d) Prior to terminating this Agreement pursuant to Section 6.06(b) or making any Change in Recommendation in connection with an Acquisition Proposal pursuant to Section 6.06(c): (i) CMS shall have complied in all material respects with Section 6.06(a) and Section 6.06(f); (ii) CMS shall have given Customers written notice of the intention of the CMS Board to take such action, with such notice specifying the material terms and conditions of the Acquisition Proposal, including the identity of the Person making such Acquisition Proposal, a copy of all material documents relating thereto and a copy of and all information provided to such Person that had not previously been provided to Customers, and five Business Days after delivery of such notice for Customers to propose revisions to the terms of this Agreement (or make another proposal), and if Customers proposes to revise the terms of this Agreement, CMS shall not have submitted to the vote of its stockholders any Acquisition Proposal other than the Merger during the pendency of any negotiations during such five Business Day period between CMS (including its financial and legal advisors) and Customers and its Representatives with respect to such proposed revisions; and (iii) the CMS Board shall have determined in good faith, after considering the results of such negotiations with Customers and giving effect to any proposals, amendments or modifications offered or agreed to by Customers, if any, that such Acquisition Proposal constitutes a Superior Proposal. In the event the CMS Board does not make the determination referred to in clause (iii) of this paragraph, the CMS Board shall not effect such termination or Change in Recommendation and thereafter if the CMS Board determines that it proposes or intends to effect a termination of this Agreement or Change in Recommendation, the procedures referred to above shall apply to any subsequent proposed termination of this Agreement or Change in Recommendation. In the event of any material revisions to any Acquisition Proposal subject to the provisions of this Section 6.06(d), CMS shall be required to deliver a new written notice to Customers and to again comply with the requirements of this Section 6.06(d) with respect to such new written notice, except that the five Business Day period referred to above shall be reduced to three Business Days.
(e) Subject to Customers’ rights under ARTICLE VIII, nothing in this Section 6.06 shall prohibit the CMS Board from taking and disclosing to CMS’s stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or other applicable Law; provided, however, that any such disclosure that relates to an Acquisition Proposal shall not change the effect of such actions under this Agreement unless the CMS Board reaffirms the CMS Recommendation in such disclosure.
(f) CMS and its Subsidiaries shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than Customers) conducted heretofore with respect to any Acquisition Proposal, and shall use reasonable best efforts to cause all Persons other than Customers who have been furnished confidential information regarding CMS or its Subsidiaries and its and their Representatives not in connection with the solicitation of or discussions regarding an Acquisition Proposal within the 12 months prior to on its behalf, enter into the date hereof promptly to return or destroy such information. Neither CMS nor the CMS Board shall approve or take any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred action to and entered into in accordance with this Section 6.12(a)) relating render inapplicable to any Veritex Acquisition Proposal. As used in Proposal any applicable Takeover Laws or Takeover Provisions.
(g) For purposes of this Agreement, “Veritex Acquisition Proposal” the following terms shall mean, other than have the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.following respective meanings:
Appears in 2 contracts
Sources: Merger Agreement (Customers Bancorp, Inc.), Merger Agreement (CMS Bancorp, Inc.)
Acquisition Proposals. (a) Veritex Boston Private shall not, and shall cause its Subsidiaries and its and their officers and directors not to, and shall use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or concerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal or (iv) publicly propose any of the existence foregoing or propose any of the provisions of this Section 6.12(a)foregoing to a third party; provided, that, prior to the receipt of the Requisite Veritex Boston Private Vote, in the event Veritex Boston Private receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives officers, directors, agents, advisors and representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Boston Private shall have provided such information to HuntingtonSVB Financial, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexBoston Private. Veritex Boston Private will, will cause its officers and directors to, and will use its reasonable best efforts to cause its Representatives agents, advisors and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington SVB Financial with respect to any Veritex Acquisition Proposal. Veritex Boston Private will promptly (and in any event within one twenty-four (124) business dayhours and before entering into any discussions or providing any information) advise Huntington SVB Financial following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), will provide SVB Financial with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise SVB Financial of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Boston Private shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex Boston Private shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.9(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall meanmeans, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex Boston Private and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexBoston Private, (ii) any tender offer (including a self tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexBoston Private, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction combination involving Veritex Boston Private or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexBoston Private. As used in this Agreement, “Superior Proposal” means a bona fide written Acquisition Proposal that the Board of Directors of Boston Private concludes in good faith to be more favorable to its shareholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisors, (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of “Superior Proposal,” the reference to “25%” in the definition of Acquisition Proposal shall instead refer to “50%”.
Appears in 2 contracts
Sources: Merger Agreement (Boston Private Financial Holdings Inc), Merger Agreement (Boston Private Financial Holdings Inc)
Acquisition Proposals. (a) Veritex shall Each party agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex either party receives an unsolicited bona fide written Veritex Acquisition Proposal, it such party may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, provided further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and party shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexsuch party. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex Each party will promptly (and in any event within one seventy-two (172) business dayhours) advise Huntington the other party following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Each party shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex "Acquisition Proposal” " shall mean, other than the transactions contemplated by this AgreementAgreement or as set forth on Section 6.11(a) of the TCG Disclosure Schedule, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (iA) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more than the Specified Percentage of the consolidated assets of Veritex a party and its Subsidiaries or 25% or more than the Specified Percentage of any class of equity or voting securities of Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than the Specified Percentage of the consolidated assets of Veritexthe party, (iiB) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more than the Specified Percentage of any class of equity or voting securities of Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than the Specified Percentage of the consolidated assets of Veritexthe party, or (iiiC) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than the Specified Percentage of the consolidated assets of Veritexthe party. For purposes hereof, "Specified Percentage" means 24.9% in the case of TCG and 49.9% in the case of MB.
(b) Nothing contained in this Agreement shall prevent a party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act, or other applicable disclosure legal requirements or the rules applicable to issuers with securities listed on the NASDAQ with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Taylor Capital Group Inc), Merger Agreement (Mb Financial Inc /Md)
Acquisition Proposals. (a) Veritex The Company agrees that (i) it and its Executive Officers and Directors shall not, (ii) its subsidiaries and its subsidiaries’ executive officers and Directors shall cause its Subsidiaries not and (iii) it shall use its reasonable best efforts to cause ensure that its and their officers, directors, agents, advisors its subsidiaries’ respective agents and representatives (collectively, “Representatives”) not toshall not, (A) directly or indirectly, (i) initiate, solicit, knowingly encourage solicit or knowingly facilitate any inquiries or proposals the making of any Acquisition Proposal or any proposal that may reasonably be expected to lead to an Acquisition Proposal, (B) directly or indirectly enter into, maintain, participate in or continue any negotiations or discussions with any person concerning, or provide access to its properties, books and records or any confidential information or data to any person relating to an Acquisition Proposal or to any proposal that may reasonably be expected to lead to an Acquisition Proposal, (C) engage in discussions with any person with respect to any Acquisition Proposal (other than to clarify the terms of the Acquisition Proposal and any material terms thereof and the conditions to consummation so as to determine whether there is a reasonable possibility that such Acquisition Proposal is or could reasonably be expected to lead to a Superior Proposal, or pursuant to clause (iv) below), (D) adopt, approve, recommend or publicly propose to recommend, or agree to any Acquisition Proposal or any Acquisition Proposal Documentation or (E) resolve, propose or agree to do any of the foregoing. The Company agrees that it will, and it will cause its subsidiaries and its and their respective Representatives to, (iix) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before with any person with respect to any Acquisition Proposal and use its reasonable best efforts to obtain the return or the destruction of, in accordance with the terms of the applicable confidentiality agreement and to the extent the Company is entitled to have such information returned or destroyed, confidential information previously furnished by the Company, its subsidiaries or its or their respective Representatives to any such person in connection with the consideration of any Acquisition Proposal and (y) cause any physical or virtual data room to no longer be accessible to any such person in connection with the consideration of any Acquisition Proposal other than the Company, Parent and their respective affiliates and Representatives. The Company shall not, and shall cause its subsidiaries not to, release or permit the release of any person from, waive or permit the waiver of any right under, fail to enforce any provision of, or grant any consent or make any election under, any confidentiality, “standstill” or similar agreement with any person to which the Company or any of its subsidiaries is a party, unless the Board determines after consultation with its outside legal advisors that the failure to release, waive, enforce, grant a consent or make an election would be inconsistent with its fiduciary duties under applicable law. The Company shall (I) promptly (and in no event later than twenty-four (24) hours after receipt) notify Parent in writing of the receipt of any Acquisition Proposal (or any request for information, discussions or negotiations for access to the properties or books and records of the Company or any of its subsidiaries or other inquiry that the Company reasonably believes could have a reasonable possibility of resulting in an Acquisition Proposal) after the date of this Agreement, which notice shall include the identity of the person making such Acquisition Proposal, the material terms thereof and a copy of any Acquisition Proposal Documentation received by the Company or any of its subsidiaries or any of its or their respective Representatives in connection therewith and (II) keep Parent reasonably informed of the status and details (including any material developments with respect to such Acquisition Proposal). Thereafter, the Company shall keep Parent reasonably informed on a reasonably current basis of any material change to the terms of any such Acquisition Proposal. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Company or its Board of Directors from: (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to an Acquisition Proposal, provided that any such disclosure that constitutes a Change of Recommendation shall not be made unless the Company has complied in all material respects with Section 6.1(c); (ii) prior to obtaining the Company Requisite Vote, contacting and engaging in discussions with any person who has made after the date hereof an unsolicited bona fide Acquisition Proposal after the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt solely for the purpose of any Veritex clarifying such Acquisition Proposal and any material terms thereof and the conditions to consummation so as to determine whether there is a reasonable possibility that such Acquisition Proposal is or any inquiry which could reasonably be expected to lead to a Veritex Superior Proposal; (iii) prior to obtaining the Company Requisite Vote, and after providing Parent with at least one (1) business day prior notice, providing access to its properties, books and records and providing confidential information or data in response to a request therefor by a person who has made after the date hereof an unsolicited bona fide Acquisition Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (except for changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement and it being understood that the Company may enter into a confidentiality agreement without a standstill provision or with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Confidentiality Agreements to the extent not already released pursuant to Section 6.12, and in no event shall the Company following the date hereof agree, in such confidentiality agreement or otherwise to reimburse any expenses incurred by such person in connection with their review of such information or any Acquisition Proposal), and (iv) prior to obtaining the substance thereof Company Requisite Vote, contacting and engaging in any negotiations or discussions with any person who has made after the date hereof an unsolicited bona fide Acquisition Proposal (including which negotiations or discussions are not solely for clarification purposes) (and, if applicable in connection therewith, waive or modify any “standstill” or similar agreement), if and only to the material terms and conditions of and extent that in connection with the identity of the person making such inquiry foregoing clauses (iii) or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments(iv), discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexthe Company shall have determined in good faith, after consultation with its outside legal counsel and its financial advisors (including at least one financial advisor who is not, and whose affiliates are not, proposing to enforce provide debt or equity financing in connection with such Acquisition Proposal) that, (x) such Acquisition Proposal constitutes, or such Acquisition Proposal is reasonably likely to lead to, a Superior Proposal, and (y) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, and following any existing confidentiality such determination, the Company shall keep Parent reasonably informed as to the status, details and substance of any such negotiations or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term discussions.
(b) For purposes of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.:
Appears in 2 contracts
Sources: Merger Agreement (Phoenix Companies Inc/De), Merger Agreement
Acquisition Proposals. (a) Veritex National Penn shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex National Penn Vote, in the event Veritex National Penn receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex National Penn shall have provided such information to HuntingtonParent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexNational Penn. Veritex National Penn will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex National Penn will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could would reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within one (1) business day) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex National Penn shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of Unless this AgreementAgreement has been terminated in accordance with its terms, Veritex National Penn shall not, and shall cause its Subsidiaries and cause its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.letter
Appears in 2 contracts
Sources: Merger Agreement (Bb&t Corp), Merger Agreement (National Penn Bancshares Inc)
Acquisition Proposals. (a) Veritex From the date hereof until the termination hereof, the Company shall notnot and shall cause the Subsidiaries not to, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their the officers, directors, agentsemployees and other agents and advisors (including, advisors without limitation, any investment bank, attorney or accountant retained by the Company) of the Company and representatives (collectively, “Representatives”) its Subsidiaries not to, directly or indirectly, (i) initiate, take any action to solicit, initiate or knowingly encourage or otherwise knowingly facilitate any inquiries Acquisition Proposal or any inquiries, proposals with respect toor offers from any Person (other than Parent or Merger Sub) relating to any Acquisition Proposal, (ii) engage grant any waiver or participate in release under any negotiations standstill or similar agreement with respect to any person concerning class of equity securities of the Company or any Subsidiary or (iii) provide furnish any confidential or nonpublic information or data to, or have to or participate in any discussions with, or negotiations with any person relating to, any Veritex Acquisition Proposal, except to notify a person Person that has made or, to the knowledge Knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex intends to make an Acquisition Proposal of except to the existence of extent the provisions of this Section 6.12(a)foregoing could not reasonably be expected to be relevant to an Acquisition Proposal; provided, however, that nothing contained in this Section 7.4(a) shall prohibit the Board from taking any action described in clause (iii) above with respect to any Person that has made an unsolicited (as such term relates to the period from and after the date hereof) bona fide written Superior Proposal if, and only to the extent that, prior (A) the acceptance for payment of any Shares pursuant to the receipt of Offer shall not have occurred, (B) the Requisite Veritex VoteBoard, after consultation with outside legal counsel, determines in good faith that such action would, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposalabsence of the foregoing proscriptions, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of required by its fiduciary duties under the DGCL or its duties or obligations under other applicable law; providedLaw, further, that, and (C) prior to or concurrently with providing taking such action, the Company receives from such Person an executed confidentiality agreement in reasonably customary form and in any nonpublic information permitted event containing terms at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after determining to be provided pursuant to take any action described in clause (iii) of the foregoing provisopreceding sentence, Veritex the Company shall have provided notify Parent of any such information to HuntingtonSuperior Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Person making it), and shall have entered into thereafter inform Parent on a confidentiality agreement prompt basis of any material changes to the terms and conditions of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexparty. Veritex willThe Company shall, and will use its reasonable best efforts to shall cause its Representatives Subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its Subsidiaries to, immediately cease and cause to be terminated any activitiesall discussions and negotiations, discussions or negotiations conducted before if any, that have taken place prior to the date of this Agreement hereof with any person other than Huntington parties with respect to any Veritex Acquisition Proposal. Veritex will promptly (and Nothing contained in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex this Agreement shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of prevent the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance the Company from complying with Rule 14e-2 under the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance Exchange Act with this Section 6.12(a)) relating respect to any Veritex Acquisition Proposal. As used ; provided, however, that in this Agreement, “Veritex Acquisition Proposal” connection therewith the Company and the Board of Directors shall mean, other than be subject to the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication provisions of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexSection 7.4(b).
Appears in 2 contracts
Sources: Merger Agreement (Cable & Wireless PLC), Merger Agreement (Digital Island Inc)
Acquisition Proposals. (a) Veritex shall notAfter the date hereof and prior to the Effective Time or earlier termination of this Agreement, CIMA agrees that neither it nor any of its Subsidiaries nor any of the officers, directors or employees of it or its Subsidiaries shall, and that it shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) its Subsidiaries' other Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or encourage, knowingly facilitate or induce any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries inquiry with respect to, or is considering the making, a Veritex submission or announcement of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal of (except to notify such Person as to the existence of these provisions or to the provisions extent specifically permitted pursuant to this Section 6.03), (iii) accept, approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to this Section 6.03), or (iv) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby (except for confidentiality agreements specifically permitted pursuant to Section 6.03(c)(3)). CIMA and its officers, directors and employees will immediately cease and cause to be terminated, and shall use its reasonable best efforts to cause its and its Subsidiaries' other Representatives to immediately cease and terminate, any activities, discussions or negotiations conducted before the date of this Section 6.12(aAgreement with any Persons other than Cephalon with respect to any Acquisition Proposal, and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to any such Acquisition Proposal.
(b) CIMA will as promptly as practicable (and in no event later than within one Business Day after receipt thereof) notify Cephalon in writing following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry which it reasonably believes could lead to an Acquisition Proposal. Such notice shall set forth in reasonable detail the substance and material terms of such Acquisition Proposal, request or inquiry (including the identity of the Person making such Acquisition Proposal, request or inquiry); provided. CIMA will keep Cephalon apprised of any related developments, that, prior discussions and negotiations (including any material changes or modifications to the receipt terms and conditions of the Requisite Veritex VoteAcquisition Proposal, request or inquiry) on a current basis, and provide to Cephalon, as soon as reasonably practicable, copies of all written materials provided or made available in connection with such Acquisition Proposal, request or inquiry (including the form of any merger agreement or acquisition agreement, as the case may be, in connection with any such Acquisition Proposal). CIMA shall provide Cephalon with forty-eight (48) hours' prior notice (or such lesser prior notice as is provided to the event Veritex receives members of its Board of Directors) of any meeting of the CIMA Board at which such Board of Directors is reasonably expected to consider any Acquisition Proposal.
(c) Notwithstanding anything in this Agreement to the contrary, CIMA shall be permitted to engage in discussions or negotiations with, and provide nonpublic information to, any Person that has made an unsolicited bona fide written Veritex Acquisition ProposalProposal with respect to it, it may, if and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions only to the extent that that:
(1) the CIMA Stockholder Approval shall not have been obtained;
(2) (x) the CIMA Board has concluded in good faith, after consultation with a nationally recognized financial advisor and its outside legal counsel, such Acquisition Proposal constitutes a Superior Proposal (and continues to constitute a Superior Proposal after taking into account any amendment or modification to this Agreement proposed by the other party hereto during any three Business Day period referenced below in Section 6.03(d)), or (y) the CIMA Board of Directors concludes in good faith (faith, after receiving the advice of consultation with a nationally recognized financial advisor and its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take there is a reasonable likelihood that such actions Acquisition Proposal would reasonably be more likely than not expected to result in a violation of its fiduciary duties under applicable law; provided, further, that, Superior Proposal;
(3) prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing provisoany Person, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with ; and
(4) prior to providing any exclusive right nonpublic information to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, Person or entering into discussions or negotiations conducted before the date with any Person, it has notified Cephalon promptly of such Acquisition Proposal (a "Superior Proposal Notice") and has otherwise complied with its obligations under Section 6.03(b).
(d) For a period of not less than three Business Days after CIMA's delivery of any Superior Proposal Notice to Cephalon, it shall, if requested by Cephalon, negotiate in good faith with Cephalon to revise this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex so that the Acquisition Proposal or any inquiry which could reasonably be expected to lead to that constituted a Veritex Acquisition Superior Proposal no longer constitutes a Superior Proposal (a "Former Superior Proposal, and the substance thereof (including the material "). The terms and conditions of this Section 6.03 shall again apply to any inquiry or proposal made by any Person who withdraws a Superior Proposal or who made a Former Superior Proposal (after withdrawal or after such time as such proposal is a Former Superior Proposal).
(e) Notwithstanding anything in this Agreement to the contrary, CIMA shall be permitted to effect a Change in the CIMA Recommendation if and only to the extent that:
(1) the CIMA Stockholder Approval shall not have been obtained;
(2) it shall have (x) provided written notice to Cephalon stating that it intends to change its recommendation and the identity of the person making such inquiry or Veritex Acquisition Proposalmanner in which it intends to do so, and (y) complied with its obligations under Sections 6.03(b) and will keep Huntington reasonably apprised (d); and
(3) the CIMA Board has concluded in good faith, after receipt of any related developmentsadvice of its outside legal counsel, discussions and negotiations on a current basis, including any amendments to or revisions of that the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties failure of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any effect a Change in the CIMA Recommendation would result in a breach of its Subsidiaries is fiduciary obligations to its stockholders under applicable Law.
(f) Nothing contained in this Agreement shall prohibit CIMA or its Board of Directors from taking and disclosing to its stockholders a party in accordance with position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, provided that the content of any such disclosure thereunder shall be governed by the terms thereof. During the term of this Agreement. Without limiting the foregoing proviso, Veritex CIMA shall notnot effect a Change in the CIMA Recommendation unless specifically permitted pursuant to the terms of Section 6.03(e).
(g) CIMA shall not submit to the vote of its stockholders any Acquisition Proposal, and shall cause or propose to do so, prior to termination of this Agreement.
(h) CIMA agrees that it will use reasonable best efforts to promptly inform its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement the obligations undertaken in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex6.03.
Appears in 2 contracts
Sources: Merger Agreement (Cephalon Inc), Merger Agreement (Cima Labs Inc)
Acquisition Proposals. (a) Veritex shall Xenith agrees that it will not, and shall will cause its Subsidiaries and its and their officers and directors, and will instruct and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Xenith Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning or any Xenith Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with or otherwise cooperate in any way with, any person in connection with any Xenith Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, enter into any term sheet, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to and entered into in accordance with Section 6.12(b)) relating to any Xenith Acquisition Proposal. Xenith will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any Veritex activities, discussions or negotiations conducted before the date of this Agreement with any person other than HRB regarding any Xenith Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this .
(b) Notwithstanding Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Xenith Vote, in the event Veritex Xenith receives an unsolicited bona fide written Veritex Xenith Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish provide or cause to be furnished provided confidential or nonpublic information or data to and engage or participate in such negotiations or discussions to with the extent that person making the Xenith Acquisition Proposal and such person’s Representatives if its Board of Directors concludes in its good faith business judgment (after receiving the advice of its outside counsel, and with respect to financial matters its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided that prior to providing any confidential or nonpublic information permitted to be provided pursuant to this Section 6.12(b), Xenith shall have entered into a confidentiality agreement with such third party on terms no less favorable to it in the aggregate than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Xenith. Xenith will promptly (within twenty-four (24) hours) advise HRB following Xenith’s receipt of any such Xenith Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Xenith Acquisition Proposal, and the substance thereof (including the material terms and conditions of the Xenith Acquisition Proposal and the identity of the person making such inquiry or Xenith Acquisition Proposal), and will keep HRB apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Xenith Acquisition Proposal. Xenith shall enforce any existing confidentiality agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.
(c) HRB agrees that it will not, and will cause its Subsidiaries and its and their officers and directors, and will instruct and use reasonable best efforts to cause its Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any HRB Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any HRB Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, have or participate in any discussions with or otherwise cooperate in any way with, any person in connection with any HRB Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, enter into any term sheet, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to and entered into in accordance with Section 6.12(d)) relating to any HRB Acquisition Proposal. HRB will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Xenith regarding any HRB Acquisition Proposal.
(d) Notwithstanding Section 6.12(c), prior to the receipt of the Requisite HRB Vote, in the event HRB receives an unsolicited bona fide written HRB Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, provide or cause to be provided confidential or nonpublic information or data to and engage or participate in negotiations or discussions with the person making the HRB Acquisition Proposal and such person’s Representatives if its Board of Directors concludes in its good faith business judgment (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, that prior to or concurrently with providing any confidential or nonpublic information permitted to be provided pursuant to the foregoing provisothis Section 6.12(d), Veritex shall have provided such information to Huntington, and HRB shall have entered into a confidentiality agreement with such third party on terms no less favorable to it in the aggregate than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexHRB. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex HRB will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Xenith following HRB’s receipt of any Veritex such HRB Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex HRB Acquisition Proposal, and the substance thereof (including the material terms and conditions of the HRB Acquisition Proposal and the identity of the person making such inquiry or Veritex HRB Acquisition Proposal) ), and will keep Huntington reasonably Xenith apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex HRB Acquisition Proposal. Veritex HRB shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Xenith Bankshares, Inc.), Agreement and Plan of Reorganization (Hampton Roads Bankshares Inc)
Acquisition Proposals. (a) Veritex shall Amegy will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their its Subsidiaries’ officers, directors, agents, advisors advisors, affiliates and representatives (collectively, “Representatives”) any other person acting on their behalf not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to or waive any provision of or amend the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal terms of the existence Amegy Rights Agreement, in respect of the provisions of this Section 6.12(a)an Acquisition Proposal; provided, provided that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex Amegy receives an unsolicited bona fide written Veritex Acquisition Proposal after the execution of this Agreement and prior to (but not after) the approval of this plan of merger by the shareholders of Amegy at the Amegy Meeting, and the Amegy Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal, it Amegy may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Amegy Board of Directors concludes reasonably and in good faith (after receiving and based on the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, provided that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement; provided, which confidentiality agreement that Amegy shall not provide have given Zions (orally and in writing) at least three (3) business days’ prior written notice of its intent to do so before taking the first of any such person actions with any exclusive right one such person; provided, further, that Amegy and the Board of Directors of Amegy shall keep Zions informed of the status and terms of any such proposals, offers, discussions or negotiations on a prompt basis, including by providing a copy of all material documentation or correspondence relating thereto; and provided, further, that in any event Amegy shall be required to negotiate otherwise comply with Veritexits obligations under Section 6.02(c). Veritex will, and Amegy will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than Huntington Zions with respect to any Veritex Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Veritex Amegy will promptly (and in any event within one (1) business day) advise Huntington Zions following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) thereof, and will keep Huntington reasonably Zions apprised of any related developments, discussions and negotiations on a current basis, including any amendments .
(b) Nothing contained in this Agreement shall prevent Amegy or the Amegy Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to or revisions of the material terms of such inquiry or Veritex an Acquisition Proposal. Veritex shall use its reasonable best efforts, subject provided that such Rules will in no way eliminate or modify the effect that any action pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of such Rules would otherwise have under this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Amegy Bancorporation, Inc.), Merger Agreement (Zions Bancorporation /Ut/)
Acquisition Proposals. (a) Veritex shall notGranite agrees that after the Triggering Point:
(i) neither it nor any of its Subsidiaries nor any of its officers and directors or the officers and directors of any of its Subsidiaries shall, and it shall cause its Subsidiaries direct and use its reasonable best efforts to cause its employees and their officers, directors, agents, advisors and representatives including any investment banker, attorney or accountant retained by it or by any of its Subsidiaries (collectively, its “Representatives”) not to, (A) initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals the making or implementation of any Acquisition Proposal, (B) furnish information or access to any Person that has made an Acquisition Proposal to the Granite Board or that makes an Acquisition Proposal to the Granite Board after the date hereof, or (C) participate in discussions or negotiate with respect to, any Person concerning any Acquisition Proposal;
(ii) engage or participate in any negotiations with any person concerning or (iiinotwithstanding Section 5.08(a)(i) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, thatabove, prior to the receipt of Granite Stockholder Approval, Granite may, directly or indirectly through its Representatives, (A) furnish information and access to any Person that has made an Acquisition Proposal to the Requisite Veritex Vote, Granite Board or that makes an Acquisition Proposal to the Granite Board after the date hereof and (B) participate in the event Veritex receives an unsolicited bona fide written Veritex discussions and negotiate with such Person concerning any such Acquisition Proposal, it mayif and only if, in either such case set forth in clause (A) or (B) of this sentence, (1) such Acquisition Proposal did not result from a breach of this Section 5.08(a), (2) the Granite Board determines in good faith, after consultation with Granite’s financial and legal advisors, that such Acquisition Proposal constitutes, or is reasonably likely to lead to a Superior Proposal, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in (3) Granite receives from the Person making such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a an Acquisition Proposal an executed confidentiality agreement with such third party on the material terms of which, as they relate to confidentiality, are in all material respects (x) no less favorable to it Granite and (y) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement, which confidentiality agreement with respect to FNB and Granite and any information provided to such Person has previously been provided to FNB or is provided to FNB concurrently with its provision to such Person; and
(iii) Granite shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not immediately take all steps necessary to on its behalf, enter into terminate any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred approval that may have been given prior to and entered into in accordance with this Section 6.12(a)) relating the Triggering Point under any such provisions authorizing any Person to any Veritex make an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (FNB United Corp.), Merger Agreement (Bank of Granite Corp)
Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex Monroe will, and will use cause each of its reasonable best efforts to cause Subsidiaries to, and its Representatives and their respective officers, directors and representatives (including ▇▇▇▇ ▇▇▇▇▇▇) to, immediately cease and cause to be terminated any activitiesexisting solicitations, discussions or negotiations conducted before with any Person that has made or indicated an intention to make an Acquisition Proposal (as defined below). During the period from the date of this Agreement with through the Effective Time, Monroe shall not terminate, amend, modify or waive any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt material provision of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar agreement to which it Monroe or any of its Subsidiaries is a party (other than any involving ONB).
(b) Except as permitted in accordance with the terms thereof. During the term of this AgreementSection 5.06, Veritex Monroe shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including ▇▇▇▇ ▇▇▇▇▇▇) not to, (i) solicit, initiate or knowingly encourage or facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the approval of the Merger by Monroe’s shareholders, if Monroe receives a bona fide Acquisition Proposal that the Monroe Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of Monroe’s obligations under this Section 5.06, Monroe may furnish, or cause to be furnished, non-public information with respect to Monroe and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to ONB prior to or at the same time it is provided to such Person) and their Representatives not may participate in discussions and negotiations regarding such proposal if (A) the Monroe Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to Monroe’s shareholders under applicable law and (B) prior to taking such action, Monroe has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including ▇▇▇▇ ▇▇▇▇▇▇) of ▇▇▇▇▇▇ or its behalfSubsidiaries shall be a breach of this Section 5.06 by Monroe.
(c) Neither the Monroe Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw or modify in a manner adverse to ONB or propose to withdraw or modify in a manner adverse to ONB (or take any action inconsistent with) the recommendation by such Monroe Board of Directors or any such committee of this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit Monroe or Monroe Bank to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of Monroe’s shareholders to approve the Merger, the Monroe Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the Monroe Board of Directors determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the shareholders of Monroe under applicable Law, and provided, further, that the Monroe Board of Directors may not effect such an Adverse Recommendation Change unless (A) the Monroe Board shall have first provided prior written notice to ONB (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) ONB does not make, within five business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Monroe Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the Monroe Board’s fiduciary duties to the shareholders of Monroe under applicable law. As used Monroe agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, Monroe and its officers, directors and representatives shall negotiate in this Agreementgood faith with ONB and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by ONB.
(d) In addition to the obligations of Monroe set forth in paragraphs (a), (b) and (c) of this Section 5.06, Monroe shall as promptly as possible, and in any event within two business days after Monroe first obtains knowledge of the receipt thereof, advise ONB orally and in writing of (i) any Acquisition Proposal or any request for information that Monroe reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry Monroe reasonably believes could lead to any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to Monroe any offer, inquiry material change, modification or development to a previously made offer, letter of intent or any other material development, Monroe (or its outside counsel) shall (A) advise and confer with ONB (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide ONB with true, correct and complete copies of any document or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit Monroe from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the 1934 Act or from making any other disclosure to its shareholders or in any other regulatory filing if, in the good faith judgment of the Monroe Board of Directors, after consultation with its outside counsel, failure to so disclose would be reasonably likely to result in a breach of their or Monroe’s obligations under applicable law.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income or assets of Veritex Monroe and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex Monroe or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex Monroe or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange or similar transaction involving Veritex Monroe, Monroe Bank or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of Monroe, Monroe Bank, or any of Monroe’s other Subsidiaries or of any resulting parent company of Monroe or Monroe Bank; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to ONB of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural Person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Monroe Bancorp)
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal after the date of this Agreement and its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms terms, in all material respects, no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent in writing following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , the latest material terms and conditions of such Acquisition Proposal, or any amendment or modification thereof), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexthe Company, to enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal in accordance with its terms. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the terms thereofdate hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. During Unless this Agreement is contemporaneously terminated in accordance with its terms, the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. .
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry proposal or proposal relating to, or any third party indication of interest inrelating to, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 20% or more of the consolidated assets of Veritex the Company and its Subsidiaries or 2520% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other business combination, reorganization combination or similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) 20% or more of the consolidated assets of Veritexthe Company, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization. As used in this Agreement, “Superior Proposal” means a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith to be more favorable to its stockholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisors (who shall be a nationally recognized investment banking firm), (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of “Superior Proposal,” the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “a majority.”
Appears in 2 contracts
Sources: Merger Agreement (Keycorp /New/), Merger Agreement (First Niagara Financial Group Inc)
Acquisition Proposals. (a) Veritex shall notHopFed will, and shall cause its Subsidiaries and use its reasonable best efforts to will cause its and their its Subsidiaries’, officers, directors, agents, advisors and representatives (collectively, “Representatives”) to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than First Financial with respect to any Acquisition Proposal.
(b) HopFed agrees that it will not, and will cause its Subsidiaries and its and their Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a)5.6; provided, that, prior to the receipt adoption of this Agreement by the shareholders of HopFed by the Requisite Veritex HopFed Vote, in the event Veritex HopFed receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and HopFed shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, Agreement and which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex HopFed.
(c) HopFed will promptly (and in any event within one (1) three business daydays) advise Huntington First Financial following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including a summary of the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably First Financial apprised of any related developments, discussions and negotiations on a current basisupdated developments within two business days thereafter, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex HopFed, subject to its fiduciary duties, shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 20% or more of the consolidated assets of Veritex HopFed and its Subsidiaries or 2520% or more of any class of equity or voting securities of Veritex HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexHopFed, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexHopFed, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex HopFed or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexHopFed.
(d) Nothing contained in this Agreement shall prevent HopFed or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any legally required disclosure to its shareholders; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hopfed Bancorp Inc), Merger Agreement (First Financial Corp /In/)
Acquisition Proposals. (a) Veritex shall Patriot agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a6.11(a); provided, that, prior to the receipt adoption of this Agreement by the shareholders of Patriot by the Requisite Veritex Patriot Vote, in the event Veritex Patriot receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Patriot shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexPatriot. Veritex Patriot will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Green with respect to any Veritex Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Green and its affiliates) pursuant to any such agreement. Veritex Patriot will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Green following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal and copies of any written Acquisition Proposal) ), and will keep Huntington reasonably Green apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex TFC will, and will use cause each of its reasonable best efforts to cause Subsidiaries to, and its Representatives and their respective officers, directors and representatives (including KBW) to, immediately cease and cause to be terminated any activitiesexisting solicitations, discussions or negotiations conducted before with any Person that has made or indicated an intention to make an Acquisition Proposal (as defined below). During the period from the date of this Agreement with through the Effective Time, TFC shall not terminate, amend, modify or waive any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt material provision of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar agreement to which it TFC or any of its Subsidiaries is a party (other than any involving ONB).
(b) Except as permitted in accordance with the terms thereof. During the term of this AgreementSection 5.06, Veritex TFC shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including KBW) not to, (i) solicit, initiate or knowingly encourage or facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the approval of the Merger by TFC’s shareholders, if TFC receives a bona fide Acquisition Proposal that the TFC Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of TFC’s obligations under this Section 5.06, TFC may furnish, or cause to be furnished, non-public information with respect to TFC and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to ONB prior to or at the same time it is provided to such Person) and their Representatives not may participate in discussions and negotiations regarding such proposal if (A) the TFC Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to TFC’s shareholders under applicable law and (B) prior to taking such action, TFC has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including KBW) of TFC or its behalfSubsidiaries shall be a breach of this Section 5.06 by TFC.
(c) Neither the TFC Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw or modify in a manner adverse to ONB or propose to withdraw or modify in a manner adverse to ONB (or take any action inconsistent with) the recommendation by such TFC Board of Directors or any such committee of this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit TFC or TBT to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of TFC’s shareholders to approve the Merger, the TFC Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change; provided, that the TFC Board of Directors determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the shareholders of TFC under applicable Law, and provided, further, that the TFC Board of Directors may not effect such an Adverse Recommendation Change unless (A) the TFC Board shall have first provided prior written notice to ONB (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five business day period) and (ii) ONB does not make, within five business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the TFC Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the TFC Board’s fiduciary duties to the shareholders of TFC under applicable law. As used TFC agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, TFC and its officers, directors and representatives shall negotiate in this Agreementgood faith with ONB and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by ONB.
(d) In addition to the obligations of TFC set forth in paragraphs (a), (b) and (c) of this Section 5.06, TFC shall as promptly as possible, and in any event within two business days after TFC first obtains knowledge of the receipt thereof, advise ONB orally and in writing of (i) any Acquisition Proposal or any request for information that TFC reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry TFC reasonably believes could lead to any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to TFC any offer, inquiry material change, modification or development to a previously made offer, letter of intent or any other material development, TFC (or its outside counsel) shall (A) advise and confer with ONB (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide ONB with true, correct and complete copies of any document or communication related thereto.
(e) Nothing contained in this Section 5.06 shall prohibit TFC from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the 1934 Act or from making any other disclosure to its shareholders or in any other regulatory filing if, in the good faith judgment of the TFC Board of Directors, after consultation with its outside counsel, failure to so disclose would be reasonably likely to result in a breach of their or TFC’s obligations under applicable law.
(f) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income or assets of Veritex TFC and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex TFC or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex TFC or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange or similar transaction involving Veritex TFC, TBT or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of TFC, TBT, or any of TFC’s other Subsidiaries or of any resulting parent company of TFC or TBT; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to ONB of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural Person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 2 contracts
Sources: Merger Agreement (Tower Financial Corp), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Veritex shall Except as otherwise provided in this Section 6.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company will not, and nor shall cause it authorize or permit any of its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) initiate, solicit or knowingly encourage or facilitate (including by way of providing non-public information) the making of any Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal or (ii) other than informing Third Parties of the existence of the provisions contained in this Section 6.5, engage in negotiations or substantive discussions with, or furnish any nonpublic information to, any Third Party relating to an Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal; provided, however, that the Company may ascertain facts from the party making such Acquisition Proposal for the sole purpose of the Company Board informing itself about the Acquisition Proposal and the party making it. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated any all existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Person conducted heretofore with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal , or any inquiry which could or proposal that may reasonably be expected to lead to a Veritex an Acquisition Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the date that the Requisite Stockholder Approval is obtained at the Stockholders’ Meeting, in the event that the Company receives a written Acquisition Proposal (which Acquisition Proposal was made after the date of this Agreement and did not result from a breach of this Section 6.5), the Company and the substance thereof Company Board and their Representatives may, subject to compliance with this Section 6.5(b), engage in negotiations or substantive discussions (including, as a part thereof, making counterproposals) with, or furnish any information and other access to, any Third Party making such Acquisition Proposal and its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, and based on information then available, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal; provided, that the Company shall give written notice to Parent after any such determination by the Company Board and prior to taking any of the actions described in this Section 6.5(b); provided, further, that (x) prior to furnishing any material nonpublic information or providing other access, the Company receives from such Third Party an executed Acceptable Confidentiality Agreement and (y) any such material nonpublic information so furnished or access so provided has been previously provided or made available to Parent or is provided or made available (including through posting on the Electronic Data Room) to Parent substantially concurrently with it being so furnished to such Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.5 by any Representative of the Company or any of its Affiliates (including the material terms Company Board or any committee thereof) acting in such capacity shall constitute a breach of this Section 6.5 by the Company.
(c) Except as otherwise provided in the last sentence of this Section 6.5(c) or Section 6.5(d), neither the Company Board nor any committee thereof shall (i) (A) withdraw (or qualify or modify in any manner adverse to Parent), or publicly propose to withdraw (or so qualify or modify), the Company Board Recommendation, (B) take any action to exempt any Person (other than Parent and conditions its Affiliates) from the provisions of and the identity Section 203 of the person making such inquiry DGCL or Veritex any other state takeover statute, or (C) approve, adopt or recommend any Acquisition Proposal, or propose publicly to approve, adopt or recommend, any Acquisition Proposal (any action described in this clause (i) and will keep Huntington reasonably apprised of any related developmentsbeing referred to as a “Change in Recommendation”) or (ii) approve, discussions and negotiations on a current basisadopt or recommend, including any amendments or propose publicly to approve, adopt or revisions of recommend, or allow the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into execute any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar definitive agreement (other than a confidentiality agreement referred to and entered into in accordance an Acceptable Confidentiality Agreement) with this Section 6.12(a)) any Third Party constituting or relating to any Veritex Acquisition ProposalProposal (an “Alternative Acquisition Agreement”). As used Notwithstanding anything to the contrary contained in this Agreement, “Veritex at any time prior to the receipt of the Requisite Stockholder Approval, the Company Board may make a Change in Recommendation if the Company Board determines (after consultation with its outside counsel and financial advisors) that the failure to take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law; provided, that the Company has provided Parent four (4) Business Day’s prior written notice advising Parent that it intends to take such action and specifying, in reasonable detail, the reasons for such action.
(d) Without limiting Section 6.5(c), at any time prior to receipt of the Requisite Stockholder Approval, in response to a written Acquisition Proposal made after the date of this Agreement and not the result of a breach of this Section 6.5 that the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) constitutes a Superior Proposal” , the Company may terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) and, concurrently with such termination, may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall meannot terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) unless the Company pays, other than or causes to be paid, to Parent the transactions contemplated by Company Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) and Section 6.5(d), (x) unless the Company shall have provided to Parent four (4) Business Days’ prior written notice (the “6.5(e) Notice”) advising Parent that the Company intends to take such action (and (unless a copy of the relevant proposed transaction agreement has been provided to Parent) specifying, in reasonable detail, the material terms and conditions of any offersuch Superior Proposal and the identity of the Third Party making any such Superior Proposal) and, inquiry or proposal relating toif applicable, or any third party indication a copy of interest inthe relevant proposed transaction agreement, and (y):
(i) any acquisition or purchaseduring such four (4) Business Day period, direct or indirectif requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding changes to the terms of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, this Agreement intended to cause such Acquisition Proposal to no longer constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, a Superior Proposal; and
(ii) the Company Board shall have considered any tender offer or exchange offer thatadjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in writing by Parent (the “Proposed Changed Terms”) no later than 5:00 p.m., New York City time, on the fourth (4th) Business Day of such four (4) Business Day period and shall have determined in good faith (after consultation with its outside counsel and financial advisors) that the Superior Proposal would continue to constitute a Superior Proposal if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexProposed Changed Terms were to be given effect.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (WMS Industries Inc /De/)
Acquisition Proposals. (a) Veritex Susquehanna shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Susquehanna Vote, in the event Veritex Susquehanna receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Susquehanna shall have provided such information to HuntingtonParent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexSusquehanna. Veritex Susquehanna will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex Susquehanna will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within one (1) business day) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.a
Appears in 2 contracts
Sources: Merger Agreement (Bb&t Corp), Merger Agreement (Susquehanna Bancshares Inc)
Acquisition Proposals. (a) Veritex The Company shall notimmediately cease, and the Company shall cause its Subsidiaries and use each of their respective representatives to immediately cease, any discussions or negotiations with any Person conducted prior to the date of this Agreement with respect to an Acquisition Proposal. Except as permitted by this Section 5.1, the Company agrees that it will not, and will cause its reasonable best efforts to cause Subsidiaries and its and their officers, directors, agents, advisors executive officers and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly initiate or encourage or knowingly facilitate any inquiries or proposals inquiry with respect to, or the making of, any proposal that constitutes or could reasonably be expected to lead to an Acquisition Proposal, (ii) engage or participate in any negotiations with regarding an Acquisition Proposal with, or furnish any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to an Acquisition Proposal to, any Veritex Acquisition Proposal, except to notify a person Person that has made or, to the knowledge Knowledge of Veritexthe Company, is considering making any inquiries with respect toan Acquisition Proposal, or (iii) engage in discussions regarding an Acquisition Proposal with any Person that has made, or, to the Knowledge of the Company, is considering making, a Veritex an Acquisition Proposal Proposal, except to notify such Person of the existence of the provisions of this Section 6.12(a5.1.
(b) Notwithstanding Section 5.1(a); provided, thatif, prior to the receipt time the Requisite Company Stockholder Approval is obtained, the Company receives a written and unsolicited Acquisition Proposal that the board of directors of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes Company determines in good faith (after receiving the advice of consultation with its financial advisors and outside counsel) constitutes or is reasonably likely to lead to a Superior Proposal, and the Company may take the following actions: (1) furnish nonpublic information with respect to financial mattersthe Company and its Subsidiaries to the Person making such Acquisition Proposal, its financial advisorsbut only if (A) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to so furnishing such information, the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have Company has entered into a customary confidentiality agreement with such third party Person on terms no less favorable to it the Company than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willby and between the Company and Purchaser dated as of November 2, 2018, and will use its reasonable best efforts (B) all such information has previously been made available to cause its Representatives to, immediately cease Purchaser or is provided to Purchaser prior to or contemporaneously with the time it is provided to the Person making such Acquisition Proposal or such Person’s representatives; and cause to be terminated (2) engage or participate in any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington such Person with respect to any Veritex the Acquisition Proposal. Veritex will The Company promptly (and in any event within one (148 hours) business day) shall advise Huntington following Purchaser orally and in writing of the receipt of (i) any Veritex Acquisition Proposal or and any inquiry which could that is reasonably be expected likely to lead to a Veritex an Acquisition Proposal, Proposal and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such proposal or inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and (including the fiduciary duties identity of the Board party making such proposal or inquiry and, if applicable, copies of Directors of Veritexany documents or correspondence evidencing such proposal), and (ii) any request for information relating to enforce any existing confidentiality or standstill agreements to which it the Company or any of its Subsidiaries is other than requests for information not reasonably likely to be related to an Acquisition Proposal. The Company shall keep Purchaser informed on a party reasonably current basis (and in accordance with any event at least once every two (2) Business Days) of the terms thereofstatus of any such Acquisition Proposal (including any material change to its terms).
(c) Except as set forth in Section 5.1(d), the board of directors of the Company shall not (i) withhold, withdraw, or modify (or publicly propose to withhold, withdraw or modify), in a manner adverse to Purchaser, its recommendation referred to in Section 5.8, or (ii) approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal. During the term of this AgreementExcept as set forth in Section 5.1(d), Veritex Company shall not, and its board of directors shall cause its not allow the Company to, and the Company shall not allow any of the Company’s Subsidiaries and its and their Representatives not to on its behalfto, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a except for confidentiality agreement referred to and entered into in accordance with this agreements permitted under Section 6.12(a5.1(b)) relating to any Veritex Acquisition Superior Proposal. As used .
(d) Notwithstanding anything to the contrary set forth in this Agreement, “Veritex Acquisition Proposal” shall meanthe board of directors of the Company may, other than prior to the transactions contemplated by this Agreementtime the Requisite Company Stockholder Approval is obtained, any offer, inquiry in response to a Superior Proposal which did not result from a breach of Section 5.1(a) or proposal relating to, or any third party indication of interest in(b), (i) any acquisition or purchasemake a Change in Recommendation and/or (ii) terminate this Agreement pursuant to Section 7.1 (and concurrently with such termination cause Company to enter into a definitive agreement with respect to the Superior Proposal), direct or indirect, in each case of twenty-five percent clauses (25%i) or more (ii), if the board of directors of the consolidated assets Company has determined in good faith, after consulting with its outside counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law; provided that the board of Veritex directors may not take any such action in connection with an Acquisition Proposal unless (1) the board of directors has determined that such Acquisition Proposal constitutes a Superior Proposal, (2) prior to terminating this Agreement pursuant to Section 7.1(f), the Company provides prior written notice to Purchaser at least four (4) Business Days in advance (the “Notice Period”) of its intention to take such action, which notice shall specify all material terms and its Subsidiaries or 25% or more conditions of such Superior Proposal (including the identity of the party making such Superior Proposal and copies of any class of equity documents or voting securities of Veritex or correspondence evidencing such Superior Proposal), (3) during the Notice Period, Company shall, and shall cause its Subsidiaries whose assetsfinancial advisors and outside counsel to, individually or negotiate with Purchaser in good faith should Purchaser propose to make such adjustments in the aggregate, terms and conditions of this Agreement so that such Superior Proposal ceases to constitute twenty-five percent (25%) or more in the good faith judgment of the consolidated assets Company’s board of Veritexdirectors) a Superior Proposal and (4) such Superior Proposal continues to constitute (in the good faith judgment of the Company’s board of directors) a Superior Proposal after taking into account any such amendments that Purchaser shall have agreed to make prior to the end of the Notice Period. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new notice to Purchaser and again comply with the requirements of this Section 5.1(d), except that the Notice Period shall be reduced to two (2) Business Days.
(e) Nothing contained in this Section 5.1 shall prohibit Company from (i) complying with its disclosure obligations under U.S. federal or state law with regard to an Acquisition Proposal, including Rules 14a-9, 14d-9 or 14e-2 promulgated under the Exchange Act, or, (ii) making any tender offer disclosure to the Company’s stockholders if, after consultation with its outside legal counsel, the Company determines that such disclosure would be required under applicable law; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed to be a Change in Recommendation unless it is limited to a stop, look, and listen communication or exchange offer that, if consummated, would result the Company’s board of directors reaffirms the recommendation referred to in Section 5.8 in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in disclosure and does not recommend that the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexCompany’s stockholders tender their shares, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more informing any Person of the consolidated assets existence of Veritexthe provisions contained in this Section 5.1.
Appears in 2 contracts
Sources: Merger Agreement (SI Financial Group, Inc.), Merger Agreement (Berkshire Hills Bancorp Inc)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt date of the Requisite Veritex VoteCompany Meeting, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition ProposalProposal that did not result from a breach of this Section 6.12(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that (1) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (2) failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information or data, or participating in any negotiations or discussions, in each case, permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than the Company) pursuant to such agreement. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , copies of any written Acquisition Proposal and written summaries of any material oral communications relating to an Acquisition Proposal), and will keep Huntington reasonably Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement .
(other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)b) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.,
Appears in 2 contracts
Sources: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Cape Bancorp, Inc.)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, employees, agents, consultants, advisors and other representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning or any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toto any person (other than Parent, Parent Bank and their Representatives in their capacity as such) concerning any Acquisition Proposal or (iv) have or participate in any discussions with, with any person (other than Parent, Parent Bank and their Representatives in their capacity as such) relating to, to any Veritex Acquisition Proposal, except except, for purposes of this clause (iv), solely to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a6.13(a); provided, that, provided that prior to the receipt date of the Requisite Veritex VoteCompany Meeting, in the event Veritex the Company receives from any person (other than Parent, Parent Bank or their respective Representatives in their capacity as such) an unsolicited bona fide written Veritex Acquisition ProposalProposal that did not result from a breach of this Section 6.13, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data to, and participate in in, discussions with such negotiations or discussions person with respect to such Acquisition Proposal but only to the extent that that, prior to doing so, its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) failure to take such actions would reasonably be more likely than not expected to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, prior to or concurrently with providing any nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have (x) provided such information or data to Huntington, Parent and shall have (y) entered into a confidentiality agreement with such third party person on terms no less favorable stringent to it such person (and protective to the Company) than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company, its Subsidiaries or its or their respective Representatives. Veritex Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.13 by any Subsidiary or Representative of the Company shall constitute a breach of this Section 6.13 by the Company.
(b) The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date execution of this Agreement with any person (other than Huntington Parent, Parent Bank and their Representatives in their capacity as such) with respect to any Veritex Acquisition Proposal. Veritex Proposal and will promptly use its reasonable best efforts, subject to Law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within five (5) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent, Parent Bank and their Representatives in their capacity as such) pursuant to any such agreement.
(c) Promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which that could reasonably be expected to lead to a Veritex an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , copies of any written Acquisition Proposal and written summaries of any material oral communications relating to an Acquisition Proposal), and will keep Huntington reasonably Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement .
(other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)d) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.herein,
Appears in 2 contracts
Sources: Merger Agreement (Oceanfirst Financial Corp), Merger Agreement (Partners Bancorp)
Acquisition Proposals. (a) Veritex shall notFrom and after the date of this Agreement, TBI shall, and shall cause its the TBI Subsidiaries to, and it shall use its reasonable best efforts to cause any of its and their officersRepresentatives to, directorsimmediately cease and cause to be terminated immediately all existing activities, agentsdiscussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Effective Time or the termination hereof and except as permitted by the following provisions, advisors TBI shall not, and representatives (collectively, “Representatives”) it shall cause the TBI Subsidiaries and each of its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate any inquiries or proposals with respect tothe making of an Acquisition Proposal, (ii) engage except in accordance with Section 11.1(d), enter into any Contract or participate letter of intent with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in any negotiations accordance with any person concerning the provisions of this Section 9.8(a)) or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal other than informing Persons of the existence of the provisions of contained in this Section 6.12(a)9.8, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information with respect to TBI or the Bank in connection with any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; provided, however, that, at any time prior to the receipt of the Requisite Veritex VoteTBI Shareholders' Meeting, in the event Veritex receives response to an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of that the Board of Directors of VeritexTBI determines in good faith is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was made after the date hereof and did not result from a material breach of this Section 9.8, TBI may (i) furnish information with respect to enforce TBI and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided, however, that all such information has previously been, or is, in substance, provided to the Company contemporaneously as it is provided to such Person, and (ii) participate in discussions or negotiations with the Person making such Acquisition Proposal, and its officers, directors, employees, Representatives and agents regarding such Acquisition Proposal.
(b) Neither the Board of Directors of TBI nor any existing confidentiality committee thereof shall (i) (A) withdraw (or standstill agreements modify in a manner adverse to which it the Company), or publicly propose to withdraw (or modify in a manner adverse to the Company), the approval recommendation or declaration of advisability by such Board of Directors or any of its Subsidiaries is a party in accordance with the terms thereof. During the term such committee thereof of this Agreement, Veritex shall notthe Merger or the other transactions contemplated by this Agreement or (B) recommend, and shall cause its adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as a "TBI Adverse Recommendation Change") or (ii) approve or recommend, or allow TBI or any of the TBI Subsidiaries and its and their Representatives not to on its behalfexecute or enter into, enter into any Contract, letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) one or more of the consolidated assets confidentiality agreements referred to in Section 9.8(a) hereof). Notwithstanding the foregoing, if, before the TBI Shareholders' Meeting, (x) TBI receives an Acquisition Proposal, (y) the Board of Veritex Directors of TBI shall have determined in good faith after consultation with outside counsel that the failure to take such action is reasonably likely to result in a breach of its fiduciary duties under applicable Law, and (z) TBI provides written notice (a "Notice of Adverse Recommendation") advising the Company that the Board of Directors of TBI has made the determination described in clause (y) above, then the Board of Directors of TBI may take either or both of the following actions: (A) make a TBI Adverse Recommendation Change and (B) upon termination of this Agreement in accordance with Section 11.1(d), approve and enter into a Contract relating to an Acquisition Proposal that constitutes a Superior Proposal.
(c) From and after the date of this Agreement, unless the Board of Directors of TBI shall have determined reasonably and in good faith that taking such action is reasonably likely to result in a breach of its fiduciary duties under applicable Law, TBI shall promptly (but in any event within twenty-four hours) advise the Company of the receipt of any inquiries, requests, proposals or offers relating to an Acquisition Proposal, or any request for nonpublic information relating to TBI or any of its Subsidiaries by any Person that informs TBI or 25% any TBI Representative that such Person is considering making, or more has made, an Acquisition Proposal. Any such notice shall be made in writing, shall indicate the material terms and conditions thereof and the identity of the other party or parties involved, and shall include a copy of any class such written inquiry, request, proposal or offer. TBI agrees that it shall keep the Company informed on a current basis of equity or voting securities the status and terms of Veritex or its Subsidiaries whose assetsany Acquisition Proposal.
(d) Nothing contained in this Section 9.8 shall prohibit TBI from making any disclosure to the stockholders of TBI if, individually or in the aggregate, constitute twenty-five percent (25%) or more good faith judgment of the consolidated assets Board of VeritexDirectors, (ii) any tender offer or exchange offer that, if consummated, failure so to disclose would be reasonably likely to result in such third party beneficially owning twenty-five percent (25%) a breach of its fiduciary duties or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexobligations under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Community Bank Shares of Indiana Inc)
Acquisition Proposals. (a) Veritex shall notCBI agrees that neither it nor any of CBI’s Subsidiaries shall, and that it shall cause its Subsidiaries direct and use its reasonable best efforts in good faith to cause its and their each such Subsidiary’s directors, officers, directorsemployees, agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to an Acquisition Proposal. CBI further agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts in good faith to cause its and each such Subsidiary’s directors, officers, employees, agents and representatives not to, (ii) directly or indirectly, engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex to an Acquisition Proposal, except or otherwise knowingly facilitate any effort or attempt to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, make or is considering making, a Veritex implement an Acquisition Proposal of the existence of the provisions of this Section 6.12(a)Proposal; provided, thathowever, prior that nothing contained in this Agreement shall prevent CBI or its Board of Directors from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to the receipt of the Requisite Veritex Vote, in the event Veritex receives a request therefore by a Person who has made an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause Proposal if the CBI Board of Directors receives from the Person so requesting such information an executed confidentiality agreement substantially similar to be furnished nonpublic information or data and participate that entered into with NewAlliance; (C) engaging in such any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of CBI, if and only to the extent that its that, in each such case referred to in clause (B), (C) or (D) above, (i) the CBI Board of Directors concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not required in order for its directors to result in a violation of its comply with their respective fiduciary duties under applicable law; provided, further(ii) the CBI Board of Directors determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, thatif accepted, prior to or concurrently with providing any nonpublic information permitted is reasonably likely to be provided pursuant consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to CBI’s shareholders from a financial point of view than the foregoing proviso, Veritex shall have provided such information to HuntingtonMerger, and shall (iii) the shareholders of CBI have entered into not yet approved this Agreement at the CBI Shareholders Meeting. An Acquisition Proposal which is received and considered by CBI in compliance with this Section 6.10 and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a confidentiality agreement with such third party on terms no less favorable to “Superior Proposal.” CBI agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington parties conducted heretofore with respect to any Veritex Acquisition ProposalProposals. Veritex CBI agrees that it will promptly (and in any event notify NewAlliance orally within one (1) business dayBusiness Day, with written notice to follow within three (3) advise Huntington following receipt of Business Days thereafter, if any Veritex Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to a Veritex Acquisition Proposalinitiated or continued with CBI or any of its representatives after the date hereof, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry inquiry, proposal or Veritex Acquisition Proposal) offer and the substance thereof and will keep Huntington reasonably apprised NewAlliance informed of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of material developments with respect thereto immediately upon the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and occurrence thereof.
(b) In the fiduciary duties of event that the Board of Directors of VeritexCBI determines in good faith, after consultation with its financial advisor and upon advice from outside counsel, that it desires to enforce any existing confidentiality or standstill agreements to which accept a Superior Proposal, it or any shall notify NewAlliance in writing of its Subsidiaries is a party intent to terminate this Agreement in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not order to on its behalf, enter into any letter of intent, memorandum of understanding, an acquisition agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating respect to, or any third party indication of interest inrecommend acceptance of, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more the Superior Proposal. Such notice shall specify all of the consolidated assets terms and conditions of Veritex such Superior Proposal and its Subsidiaries or 25% or more identify the Person making such Superior Proposal. NewAlliance shall have five Business Days to evaluate and respond to CBI’s notice. If NewAlliance delivers to CBI in writing prior to the expiration of any class the five Business Day period provided above (x) an amendment to Sections 3.1.2, 3.1.3 and 3.1.4 of equity or voting securities this Agreement increasing the Merger Consideration to an amount, and (y) adjusting other material terms and conditions such that they are at least equal to that of Veritex or its Subsidiaries whose assetssuch Superior Proposal (the “NewAlliance Amendment”), individually or as determined by CBI’s Board of Directors in the aggregategood faith exercise of its fiduciary duties after consultation with its financial advisors and counsel, constitute twenty-then CBI shall accept the NewAlliance Amendment and reject the Superior Proposal. CBI shall have five percent Business Days to evaluate the NewAlliance Amendment.
(25%c) or more In the event that the Board of Directors of CBI determines under Section 6.10(b) that the consolidated assets of VeritexNewAlliance Amendment is not at least equal to the Superior Proposal, (ii) any tender offer or exchange offer that, if consummated, would result CBI can terminate this Agreement in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexorder to execute an Acquisition Agreement with respect to, or (iii) to allow its Board to adopt a mergerresolution recommending acceptance to CBI’s shareholders of, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or the Superior Proposal as provided in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexSection 11.1.9.
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Acquisition Proposals. (a) Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex Heartland will, and will use cause each of its reasonable best efforts to cause Subsidiaries to, and its Representatives and their respective officers, directors and representatives (including DP&P) to, immediately cease and cause to be terminated any activitiesexisting solicitations, discussions or negotiations conducted before with any Person that has made or indicated an intention to make an Acquisition Proposal (as defined below). During the period from the date of this Agreement with through the Effective Time, Heartland shall not terminate, amend, modify or waive any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt material provision of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar agreement to which it Heartland or any of its Subsidiaries is a party (other than any involving Horizon).
(b) Except as permitted in accordance with the terms thereof. During the term of this AgreementSection 5.06, Veritex Heartland shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives (including DP&P) not to, (i) solicit, initiate or knowingly encourage or facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided, however, that, at any time prior to obtaining the approval of the Merger by Heartland’s shareholders, if Heartland receives a bona fide Acquisition Proposal that the Heartland Board of Directors determines in good faith constitutes a Superior Proposal (as defined below) that was not solicited after the date hereof and did not otherwise result from a breach of Heartland’s obligations under this Section 5.06, Heartland may furnish, or cause to be furnished, non-public information with respect to Heartland and its Subsidiaries to the Person who made such proposal (provided that all such information has been provided to Horizon prior to or at the same time it is provided to such Person) and their Representatives not may participate in discussions and negotiations regarding such proposal if (A) the Heartland Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to Heartland’s shareholders under applicable law and (B) prior to taking such action, Heartland has used its best reasonable efforts to enter into a confidentiality agreement with respect to such proposal that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06 by any representative (including DP&P) of Heartland or its behalfSubsidiaries shall be a breach of this Section 5.06 by Heartland.
(c) Neither the Heartland Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw or modify in a manner adverse to Horizon or propose to withdraw or modify in a manner adverse to Horizon (or take any action inconsistent with) the recommendation by such Heartland Board of Directors or any such committee of this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit Heartland or Heartland Bank to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of Heartland’s shareholders to approve the Merger, the Heartland Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the Heartland Board of Directors determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the shareholders of Heartland under applicable Law, and provided, further, that the Heartland Board of Directors may not effect such an Adverse Recommendation Change unless (A) the Heartland Board shall have first provided prior written notice to Horizon (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new ten (10) business day period) and (B) Horizon does not make, within ten (10) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Heartland Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the Heartland Board’s fiduciary duties to the shareholders of Heartland under applicable law. As used Heartland agrees that, during the ten (10) business day period prior to its effecting an Adverse Recommendation Change, Heartland and its officers, directors and representatives shall negotiate in this Agreementgood faith with Horizon and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by Horizon.
(d) In addition to the obligations of Heartland set forth in paragraphs (a), (b) and (c) of this Section 5.06, Heartland shall as promptly as possible, and in any event within two (2) business days after Heartland first obtains knowledge of the receipt thereof, advise Horizon orally and in writing of (i) any Acquisition Proposal or any request for information that Heartland reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry Heartland reasonably believes could lead to any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request or inquiry, if there occurs or is presented to Heartland any offer, inquiry material change, modification or development to a previously made offer, letter of intent or any other material development, Heartland (or its outside counsel) shall (A) advise and confer with Horizon (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide Horizon with true, correct and complete copies of any document or communication related thereto.
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income or assets of Veritex Heartland and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex Heartland or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex Heartland or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange or similar transaction involving Veritex Heartland, Heartland Bank or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of Heartland, Heartland Bank, or any of Heartland’s other Subsidiaries or of any resulting parent company of Heartland or Heartland Bank; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to Horizon of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural Person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
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Acquisition Proposals. (a) Veritex shall Except as otherwise provided in this Section 6.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company will not, and nor shall cause it authorize or permit any of its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) initiate, solicit or knowingly encourage or facilitate (including by way of providing non-public information) the making of any Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal, or (ii) other than informing Third Parties of the existence of the provisions contained in this Section 6.5, engage in negotiations or substantive discussions with, or furnish any nonpublic information to, any Third Party relating to an Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal; provided, however, that the Company may ascertain facts from the party making such Acquisition Proposal for the sole purpose of the Company Board informing itself about the Acquisition Proposal and the party making it. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated any all existing activities, discussions or negotiations with any Person conducted before heretofore with respect to any Acquisition Proposal, or any inquiry or proposal that may reasonably be expected to lead to an Acquisition Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the date that the Requisite Stockholder Approval is obtained at the Stockholders’ Meeting, in the event that the Company receives a written Acquisition Proposal, which Acquisition Proposal was made after the date of this Agreement and did not result from a breach of this Section 6.5, the Company and the Company Board and their Representatives may, subject to compliance with this Section 6.5(b), (A) engage in negotiations or substantive discussions (including, as a part thereof, making counterproposals) with, or (B) furnish any person information and other than Huntington access to, any Third Party making such Acquisition Proposal and its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with respect the Company’s outside legal and financial advisors, and based on information then available, that such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal; provided, that (x) prior to furnishing any Veritex Acquisition Proposal. Veritex will material nonpublic information, the Company receives from such Third Party an executed Acceptable Confidentiality Agreement and (y) any such material nonpublic information so furnished has been previously provided or made available to Parent or is provided or made available (including through posting on the Electronic Data Room) to Parent as promptly as practicable (and in any event within one (124 hours thereafter) business day) advise Huntington following receipt after being so furnished to such Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.5 by any Veritex Acquisition Proposal Representative of the Company or any inquiry which could reasonably of its Affiliates (including the Company Board or any committee thereof) acting in such capacity shall constitute a breach of this Section 6.5 by the Company
(c) Except as otherwise provided in the last sentence of this Section 6.5(c) or Section 6.5(d), neither the Company Board nor any committee thereof shall (i) (A) withdraw (or qualify or modify in any manner adverse to Parent), or publicly propose to withdraw (or so qualify or modify), the Company Board Recommendation, (B) (x) take any action to make the provisions of Sections 78.378 through 78.3793, inclusive, of the NRS, applicable to Parent and its Affiliates or (y) take any action or amend its Charter and Bylaws to expressly elect not to be expected to lead to governed by the provisions of Sections 78.411 through 78.444, inclusive, of the NRS, or approve a Veritex combination (as defined in such statutes) with any Person (other than Parent and its Affiliates), or (C) approve, adopt or recommend any Acquisition Proposal, and or propose publicly to approve, adopt or recommend, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, or allow the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into execute any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar definitive agreement (other than a confidentiality agreement referred to and entered into in accordance an Acceptable Confidentiality Agreement) with this Section 6.12(a)) any Third Party constituting or relating to any Veritex Acquisition ProposalProposal (an “Alternative Acquisition Agreement”). As used Notwithstanding anything to the contrary contained in this Agreement, “Veritex at any time prior to the receipt of the Requisite Stockholder Approval, the Company Board may make a Change in Recommendation and terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(c) if the Company Board determines (after consultation with its outside counsel and financial advisors) that the failure to take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law; provided, that the Company has provided Parent four (4) Business Day’s prior written notice advising Parent that it intends to take such action and specifying, in reasonable detail, the reasons for such action; and provided, further, that the Company shall not terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(c) unless the Company pays, or causes to be paid, to Parent the Company Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(d) Without limiting Section 6.5(c), at any time prior to receipt of the Requisite Stockholder Approval, in response to a written Acquisition Proposal made after the date of this Agreement and not the result of a breach of this Section 6.5 that the Company Board determines in good faith (after consultation with its outside counsel and financial advisors) constitutes a Superior Proposal” , the Company may terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) and, concurrently with such termination, may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall meannot terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) unless the Company pays, other than or causes to be paid, to Parent the transactions contemplated by Company Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) and Section 6.5(d), (x) unless the Company shall have provided to Parent four (4) Business Days’ prior written notice (the “6.5(e) Notice”) advising Parent that the Company intends to take such action (and (unless a copy of the relevant proposed transaction agreement has been provided to Parent) specifying, in reasonable detail, the material terms and conditions of any offersuch Superior Proposal and the identity of the Third Party making any such Superior Proposal) and, inquiry or proposal relating toif applicable, or any third party indication a copy of interest inthe relevant proposed transaction agreement and all material related documentation, and (y):
(i) any acquisition or purchaseduring such four (4) Business Day period, direct or indirectif requested by Parent, the Company shall have engaged, and shall have caused its Representatives to engage, in good faith negotiations with Parent regarding changes to the terms of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, this Agreement intended to cause such Acquisition Proposal to no longer constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, a Superior Proposal; and
(ii) the Company Board shall have considered any tender offer or exchange offer thatadjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in writing by Parent (the “Proposed Changed Terms”) no later than 5:00 p.m., New York City time, on the fourth (4th) Business Day of such four (4) Business Day period and shall have determined in good faith (after consultation with its outside counsel and financial advisors) that the Superior Proposal would continue to constitute a Superior Proposal if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexProposed Changed Terms were to be given effect.
Appears in 1 contract
Acquisition Proposals. (a) Veritex Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Company shall have provided notice to Parent of its intention to provide such information, and shall have provided such information to HuntingtonParent if not previously provided to Parent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexCompany. Veritex Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexlaw, to (x) enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with the terms thereof. During the term of this Agreementits terms, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.10(a)) relating to any Veritex Acquisition Proposal. ).
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five twenty percent (2520%) or more of the consolidated assets of Veritex Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of VeritexCompany, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five twenty percent (2520%) or more of any class of equity or voting securities of Veritex Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of VeritexCompany, or (iii) a merger, consolidation, share exchange or exchange, other business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of VeritexCompany, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization.
Appears in 1 contract
Acquisition Proposals. (a) Veritex Except as expressly permitted by this Section 6.5, from the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement in accordance with its terms, HNR will not, nor shall notit authorize or permit any of its Subsidiaries, and will use its reasonable best efforts to cause Petrodelta, to, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) respective Representatives not to, directly or indirectly, indirectly (i) initiate, solicit, solicit or knowingly encourage or knowingly facilitate the making of any inquiries Acquisition Proposal or proposals with respect toany inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal other than informing Third Parties of the existence of the provisions of contained in this Section 6.12(a); provided6.5, thatengage in negotiations or discussions with, prior to the receipt or furnish any information concerning any of the Requisite Veritex VoteAcquired Companies, in Seller or HNR to, any Third Party relating to an Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal or (iii) resolve or agree to do any of the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it mayforegoing. HNR shall, and may permit shall cause its Subsidiaries Affiliates and its and its Subsidiaries’ their respective Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsi) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, all existing discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Person conducted heretofore with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal , or any inquiry which could or proposal that may reasonably be expected to lead to an Acquisition Proposal and (ii) promptly cause to be returned or destroyed all confidential information provided by or on behalf of HNR or any of its Affiliates to any such Person.
(b) Notwithstanding anything to the contrary contained in this Agreement, in the event that HNR receives an unsolicited written Acquisition Proposal from a Veritex Third Party (which Acquisition Proposal was made after the date of this Agreement and did not result from a breach of this Section 6.5), HNR and the HNR Board Special Committee and their Representatives may, subject to compliance with this Section 6.5(b), engage in negotiations or substantive discussions with, or furnish any information and reasonable access to, any Third Party making such Acquisition Proposal and its Representatives if the HNR Board Special Committee determines in good faith, after consultation with the HNR Board Special Committee’s outside legal and financial advisors, and based on information then available, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal; provided, that HNR shall give written notice to Buyer after any such determination by the HNR Board Special Committee and prior to taking any of the actions described in this Section 6.5(b) and shall comply with the provisions of Section 6.5(f); and provided, further, that (x) prior to furnishing any material nonpublic information, HNR receives from such Third Party an executed Acceptable Confidentiality Agreement and (y) any such material nonpublic information so furnished has been previously provided or made available to Buyer or is provided or made available to Buyer substantially concurrently with it being so furnished to such Third Party. Other than as provided in Section 6.5(c)(i)(C), Section 6.5(d) or Section 6.5(h), HNR shall not publicly announce the receipt of any Acquisition Proposal or any negotiations or discussions in connection with any Acquisition Proposal or otherwise publicly comment on any Acquisition Proposal.
(c) Except as otherwise provided in the last sentence of this Section 6.5(c) and Section 6.5(d), and neither the substance HNR Board nor any committee thereof (including the material terms HNR Board Special Committee) shall (i) (A) withdraw (or qualify or modify in any manner adverse to Buyer), or publicly propose to withdraw (or so qualify or modify), the HNR Board Recommendations, (B) take any action to exempt any Person (other than Buyer and conditions its Affiliates) from the provisions of and the identity Section 203 of the person making DGCL or any other state takeover statute or the Rights Agreement, (C) fail to publicly reaffirm the HNR Board Recommendations within five (5) Business Days after Buyer so requests in writing (which request may only be made once with respect to any such inquiry or Veritex Acquisition Proposal and each material modification thereto), (D) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such Acquisition Proposal, (E) and will keep Huntington reasonably apprised of approve, adopt or recommend any related developmentsAcquisition Proposal or Alternative Acquisition Agreement, discussions and negotiations on or propose publicly to approve, adopt or recommend, any Acquisition Proposal or Alternative Acquisition Agreement or (F) publicly announce that an Acquisition Proposal constitutes a current basis, including Superior Proposal (any amendments action described in this clause (i) being referred to as a “Change in Recommendation”) or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it (ii) allow HNR or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (other than a confidentiality agreement referred an Acceptable Confidentiality Agreement) with any Third Party constituting or relating to, or that is intended to and entered into in accordance with this Section 6.12(a)) relating or would reasonably be expected to lead to, any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall meanor requiring, other than or reasonably expected to cause, HNR to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the transactions contemplated by this Agreement, or requiring, or reasonably expected to cause, HNR to fail to comply with this Agreement (an “Alternative Acquisition Agreement”). Notwithstanding anything to the contrary contained in this Agreement, at any offertime prior to the receipt of the Requisite Stockholder Approval, inquiry in the event a material development or proposal relating material change in circumstances (other than an Acquisition Proposal) occurs or arises after the date of this Agreement that was not known and not reasonably foreseeable by the HNR Board or the HNR Board Special Committee as of the date of this Agreement, the HNR Board Special Committee and the HNR Board may make a Change in Recommendation under clause (i)(A) or (C) above if the failure to take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of HNR under applicable Law; provided, that (y) HNR has provided Buyer four (4) Business Days’ prior written notice advising Buyer that it intends to take such action and specifying, in reasonable detail, the reasons for such action (the “6.5(c) Notice”) and (z) prior to effecting any such Change in Recommendation, HNR shall, and shall direct its financial and legal advisors to, or during such four (4) Business Day period, negotiate with Buyer in good faith (to the extent Buyer desires to negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement which would allow the HNR Board Special Committee and/or the HNR Board not to make such Change in Recommendation consistent with its fiduciary duties.
(d) At any third party indication time prior to the Closing Date, in response to an unsolicited written Acquisition Proposal made after the date of interest in, this Agreement that (i) any acquisition or purchase, direct or indirect, of twenty-five percent the HNR Board Special Committee determines in good faith (25%after consultation with its outside legal counsel and financial advisor) or more of the consolidated assets of Veritex constitutes a Superior Proposal and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) the failure to approve or recommend such Superior Proposal would be inconsistent with the HNR Board Special Committee’s and the HNR Board’s fiduciary duties to the stockholders of HNR under applicable Law, Seller may terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d); provided, however, that Seller shall not terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) unless (w) HNR has complied with its obligations under this Section 6.5, including its obligations set forth in Section 6.5(e), (x) Seller pays, or causes to be paid, to Buyer the Seller Termination Fee, the 15% Note Amount and the Additional Draw Note Amount pursuant to Section 8.3(a)(ii), (y) Seller and HNR agree to waive all rights (including rights to payment) under the Letter of Credit or any tender offer or exchange offer thatReplacement Letter of Credit pursuant to Section 8.3(b)(iii), and return the original, if consummatedany, would result of such Letter of Credit or Replacement Letter of Credit to Buyer or the issuer thereof, prior to or concurrently with, and as a condition to, such termination and (z) concurrently with such termination, HNR or Seller enters into an Alternative Acquisition Agreement that documents the terms and conditions of such Superior Proposal.
(e) Notwithstanding anything to the contrary contained in such third party beneficially owning twenty-five percent this Agreement, Seller shall not be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) and Section 6.5(d), (25%x) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in unless HNR shall have provided to Buyer four (4) Business Days’ prior written notice (the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.“6.5
Appears in 1 contract
Sources: Share Purchase Agreement (Harvest Natural Resources, Inc.)
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person or (B) notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a6.11(a); provided, that, prior to the receipt approval of the Merger by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one (1) business day) advise Huntington Purchaser following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , and copies of any proposed agreements, financing commitments, term sheets or letters of intent related thereto), and will keep Huntington reasonably Purchaser apprised on a current basis of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex "Acquisition Proposal” " shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company.
(b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the Company's shareholders; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notMLP GP and MLP shall, and they shall cause their Subsidiaries and Representatives to, (i) immediately cease and terminate any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to or that may reasonably be expected to lead to an Acquisition Proposal, and (ii) request such Person to promptly return or destroy all confidential information concerning MLP and its Subsidiaries.
(b) Neither MLP GP nor MLP shall, and they shall cause their Subsidiaries and use its their commercially reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries regarding, or proposals with respect the making or submission of any proposal or offer that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have conduct or participate in any discussions with, or negotiations regarding any person relating to, any Veritex Acquisition Proposal, except or (iii) furnish to notify a person that has made any Person any non-public information or data relating to MLP or any of its Subsidiaries or afford access to the business, properties, assets, or, except as required by Law or the MLP Partnership Agreement, books or records of MLP or any of its Subsidiaries. Notwithstanding the foregoing, at any time prior to obtaining MLP Unitholder Approval, the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of MLP GP Conflicts Committee may take the existence of the provisions actions described in clauses (ii) and (iii) of this Section 6.12(a); provided, that, prior 6.6(b) with respect to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited a third Person that makes a bona fide written Veritex unsolicited Acquisition ProposalProposal that did not result from a material breach of this Section 6.6(b) (a “Receiving Party”), it mayif (A) the MLP GP Conflicts Committee, after consultation with its outside legal counsel and may permit its Subsidiaries and its and its Subsidiaries’ Representatives tofinancial advisors, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes determines in good faith (after receiving that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and that the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not to result in a violation of inconsistent with its fiduciary duties under the MLP Partnership Agreement or applicable law; providedLaw, further, that, and (B) prior to or concurrently with providing furnishing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such non-public information to Huntingtonsuch Receiving Party, and shall have entered into a confidentiality agreement with MLP receives from such third party on terms no less favorable to it than the Receiving Party an executed Confidentiality Agreement. MLP GP and MLP shall, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will as promptly as practicable (and in any event within one (1) business day) two Business Days), advise Huntington following receipt PNR in writing of any Veritex request for non-public information or any Acquisition Proposal received from any third Person, or any inquiry or request for discussions or negotiations with respect to any Acquisition Proposal and the material terms of such request, Acquisition Proposal or inquiry. MLP GP and MLP shall, as promptly as practicable (and in all events within 48 hours), provide to PNR copies of any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposalwritten materials received by MLP GP, and MLP or any of their Subsidiaries or Representatives in connection with any of the substance thereof (including the material terms and conditions of foregoing and the identity of the person Person or group making any such inquiry request, Acquisition Proposal or Veritex Acquisition Proposalinquiry.
(c) MLP GP and will MLP shall keep Huntington PNR reasonably apprised informed of the status of any related developments, discussions and negotiations material developments regarding any Acquisition Proposal on a reasonably current basis, including . MLP GP and MLP agree that they and their Subsidiaries will not enter into any amendments to Confidentiality Agreement with any Person that prohibits MLP GP or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it MLP or any of its their Subsidiaries is a party from providing any information to PNR in accordance with Section 6.5 or this Section 6.6.
(d) The MLP Parties acknowledge that the terms thereof. During agreements contained in this Section 6.6 are an integral part of the term of Merger Transactions, and that, without these agreements, the PNR Parties would not have entered into this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest inAccordingly, (i) any acquisition if a court of competent jurisdiction finds that the MLP GP Conflicts Committee materially breached or purchase, direct took action materially inconsistent with its duties under the MLP Partnership Agreement or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexapplicable Law, (ii) if there shall have been any tender offer injunction or exchange offer thatother order issued by any court of competent jurisdiction, if consummated, would result or other legal restraint or prohibition (in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually each case based in whole or in part upon the aggregatefinding described in clause (i)), that would (A) require or permit any of the MLP Parties or any of their Representatives to act or fail to act in a manner that would, in the absence of such injunction, order, legal restraint or prohibition, constitute twenty-five percent a violation of this Section 6.6 or (25%B) or more limit the rights of the consolidated assets of VeritexPNR Parties in any respect under this Section 6.6, or and (iii) if the MLP Parties act or fail to act in a mergermanner that would, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregateabsence of such injunction, order, legal restraint or prohibition, constitute twenty-five percent (25%a violation of this Section 6.6 that would permit PNR to terminate this Agreement pursuant to Section 8.1(b)(iv), then PNR shall have the right to terminate this Agreement pursuant to Section 8.1(b)(iv) or more of the consolidated assets of Veritexhereof.
Appears in 1 contract
Sources: Merger Agreement (Pioneer Southwest Energy Partners L.P.)
Acquisition Proposals. (a) Veritex shall Merchants agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their Subsidiaries’ respective directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) continue, engage or participate in any negotiations with any person concerning or concerning, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person (other than Persons who are Affiliates or Representatives of Merchants or Community) relating to, or (iv) except as expressly permitted by Section 4.5(a), approve, recommend, agree to or accept, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to to, but not after, the receipt of time the Requisite Veritex VoteMerchants Stockholder Approval is obtained, in the event Veritex if Merchants receives an unsolicited bona fide written Veritex Acquisition Proposal after the date of this Agreement that was not received in violation of clauses (i) — (iv) above, and Merchants’ Board of Directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it Merchants may, and may permit its Subsidiaries directors, officers, employees and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data to and participate in such negotiations or discussions with the Person making such Acquisition Proposal to the extent that its the Board of Directors of Merchants concludes in good faith (after receiving the advice of its outside counselcounsel and, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Merchants shall have entered into a confidentiality agreement an Acceptable Confidentiality Agreement and shall provide to Community any such information not previously provided to Community. Notwithstanding anything to the contrary contained in this Agreement, Merchants and its Representatives may (without any determination by the Board of Directors of Merchants or consultation with outside counsel or its financial advisor) (x) following receipt of an unsolicited bona fide Acquisition Proposal after the date of this Agreement and prior to the time the Merchants Stockholder Approval is obtained that was not received in violation of clauses (i) — (iv) above, contact such third party on solely in order to clarify and understand the terms no less favorable and conditions of such Acquisition Proposal so as to it than the Confidentiality determine whether such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal and/or (y) direct any Person who makes an Acquisition Proposal or who expresses interest to Merchants in making an Acquisition Proposal to this Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexincluding the provisions of this Section 4.12. Veritex will, and Merchants will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Community with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Merchants shall use its reasonable best efforts, subject to applicable law Law, to, within ten (10) Business Days after the date hereof, request and confirm the fiduciary duties return or destruction of the Board of Directors of Veritex, any confidential information provided to enforce any Person (other than Community and its Affiliates and its and their Representatives) pursuant to any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal.
(b) Merchants shall promptly, and in accordance any event within twenty four (24) hours of receipt, advise Community in writing in the event Merchants or any of its directors, employees, officers or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal or (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Community with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). During Merchants shall keep Community informed (orally and in writing) in all material respects on a timely basis of the term status and details (including, within twenty four (24) hours after the occurrence of any amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, Merchants shall promptly (and in any event within twenty four (24) hours) notify Community orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(c) Neither the Board of Directors of Merchants nor any committee thereof shall, except as expressly permitted by Section 4.5(a), (i) (A) withdraw (or modify or qualify in any manner adverse to Community) the approval, recommendation or declaration of advisability by the Board of Directors of Merchants or any such committee of this Agreement, Veritex shall notthe Merger, and shall or any of the other transactions contemplated hereby, (B) recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal, (C) resolve, agree or propose to take any such actions or (D) submit this Agreement to its stockholders without recommendation (each such action set forth in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) (A) cause or permit Merchants or any of its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement Contract constituting or relating to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to and entered into an Acceptable Confidentiality Agreement in accordance with Section 4.12(a)) or (B) resolve, agree or propose to take any such actions.
(d) Merchants agrees that any breach by its directors, officers, employees, Affiliates or Representatives of this Section 6.12(a)4.12 shall be deemed a breach by Merchants.
(e) relating Nothing contained in this Agreement shall prevent Merchants or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to any Veritex an Acquisition Proposal; provided, that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement. As used Notwithstanding anything to the contrary contained in this Agreement, a “Veritex Acquisition Proposalstop, look and listen” communication shall mean, other than not be deemed an Adverse Recommendation Change if the transactions contemplated by this Agreement, any offer, inquiry Board of Directors of Merchants publicly states that the Merchants Directors’ Recommendation has not changed or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of refers stockholders to the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexMerchants Directors’ Recommendation.
Appears in 1 contract
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal and the Board of Directors of the Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided notice to Parent of its intention to provide such information, and shall have provided such information to HuntingtonParent if not previously provided to Parent, and shall have entered into a confidentiality non-disclosure agreement with such third party on terms no less favorable to it than the Confidentiality Non-Disclosure Agreement, which confidentiality non-disclosure agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexlaw, to (x) enforce any existing confidentiality non-disclosure, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal, and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such non-disclosure, standstill or similar agreement. Unless this Agreement is contemporaneously terminated in accordance with its terms, the terms thereof. During the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality non-disclosure agreement referred to and entered into in accordance with this Section 6.12(a6.10(a)) relating to any Veritex Acquisition Proposal. ).
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five twenty percent (2520%) or more of the consolidated assets of Veritex the Company and its Subsidiaries (including by way of reinsurance or 25% otherwise) or twenty percent (20%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five more than twenty percent (2520%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.Company,
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above, and the Company’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it the Company may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of the Company concludes in good faith (after receiving the advice of consultation with its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would constitute, or would be more reasonably likely than not to result in in, a violation breach of its fiduciary duties under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and The Company will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will The Company shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. The Company agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by the Company.
(b) Notwithstanding the foregoing, including if the Company’s Board of Directors concludes in good faith (after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes or would reasonably be expected to constitute a Superior Proposal and that failure to accept such Superior Proposal would reasonably be expected to result in a breach of its fiduciary obligations under applicable Laws, the Company Board of Directors may at any amendments time prior to the Company Shareholder Approval (i) withdraw or revisions of modify (a “Change in Recommendation”) the material terms of Company Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the Company Directors’ Recommendation, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of Veritexthe Company may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) the Company shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues or is reasonably expected to continue to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) the Company has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer or exchange offer thatsuch Superior Proposal (including the identity of the Person making such Superior Proposal)) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, if consummatedthe Company has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, the Company shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and the Company shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. The Company will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex BHC shall not, and nor shall cause it permit any of its Subsidiaries and use to, nor shall it or its reasonable best efforts to cause its and Subsidiaries authorize or permit any of their respective officers, directors, agentsemployees, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal which constitutes, any Acquisition Proposal, (ii) enter into any letter of intent or agreement related to any Acquisition Proposal other than a confidentiality agreement (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to facilitate any inquiries or proposals with respect to, (ii) engage or participate in the making of any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data toproposal that constitutes, or have or participate in any discussions with, any person relating that would reasonably be expected to lead to, any Veritex Acquisition Proposal; provided, except to notify a person however, that has made orif, at any time prior to the knowledge of VeritexBHC Stockholders’ Meeting, is making and without any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal breach of the existence of the provisions terms of this Section 6.12(a7.6(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex BHC receives an unsolicited bona fide written Veritex Acquisition Proposal from any Person that in the good faith judgment of the BHC Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, BHC may (x) furnish information (including non-public information) with respect to BHC to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement dated as of November 12, 2008, by and among Protective, BHC and Bank, and (y) participate in negotiations with such Person regarding such Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to if the extent that its BHC Board of Directors concludes determines in good faith (faith, after receiving the advice of its outside consultation with counsel, and with respect to financial matters, its financial advisors) that failure to take such actions do so would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw.
(b) Neither the BHC Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Protective, the approval or recommendation by the BHC Board or such committee of the Transactions or this Agreement; provided(ii) approve or recommend, furtheror propose to approve or recommend, that, prior any Acquisition Proposal; or (iii) authorize or permit BHC or any of its Subsidiaries to or concurrently with providing enter into any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to HuntingtonAcquisition Agreement.
(c) BHC agrees that it and its Subsidiaries shall, and BHC shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreementdirect its and its Subsidiaries’ respective officers, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willdirectors, employees, representatives and will use its reasonable best efforts to cause its Representatives agents to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Persons with respect to any Veritex Acquisition Proposal. Veritex BHC agrees that it will notify Protective promptly (and in but no later than 24 hours) if, to BHC’s Knowledge, any event within one (1) business day) advise Huntington following receipt Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations relating to an Acquisition Proposal are sought to be initiated or continued with, BHC, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of any Veritex the Person making such Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, taking such action and the substance thereof (including the material terms and conditions of any proposals or offers, and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will thereafter BHC shall keep Huntington reasonably apprised of any related developmentsProtective informed, discussions and negotiations on a current basis, including any amendments to or revisions of the material status and terms of any such inquiry proposals or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law offers and the fiduciary duties status of the Board any such discussions or negotiations. BHC also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexSubsidiaries.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notThe Company agrees that neither it nor --------------------- any of its Subsidiaries shall, and that it shall cause its Subsidiaries direct and use its reasonable best efforts to cause its and their each such Subsidiary's directors, officers, directorsemployees, agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals with respect to, (ii) engage the making of any proposal or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and offer with respect to financial matters, its financial advisors) an Acquisition Proposal. The Company further agrees that failure to take such actions would be more likely than not to result in a violation neither the Company nor any of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to HuntingtonSubsidiaries shall, and that it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, direct and will use its reasonable best efforts to cause its Representatives and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company Board from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of the Company, if and only to the extent that, in each such case referred to in clause (B), (C) or (D) above, (i) the Company Board determines in good faith (after consultation with outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the Company Board determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Company in compliance with this Section 6.08 and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a "Superior Proposal." The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington parties conducted heretofore with respect to any Veritex Acquisition ProposalProposals. Veritex The Company agrees that it will promptly (and in notify Parent immediately if any event within one (1) business day) advise Huntington following receipt of such inquiries, proposals or offers are received by, any Veritex Acquisition Proposal such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to a Veritex Acquisition Proposalinitiated or continued with, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexrepresentatives.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notFrom and after the date of this Agreement, FFKY shall, and shall cause its all FFKY Subsidiaries to, and each shall use its reasonable best efforts to cause any of its and their officersRepresentatives to, directorsimmediately cease and cause to be terminated immediately all existing activities, agentsdiscussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Closing Date or the termination hereof and except as permitted by the following provisions, advisors FFKY shall not, and representatives (collectively, “Representatives”) shall cause the FFKY Subsidiaries and each of its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate any inquiries or proposals with respect tothe making of an Acquisition Proposal, (ii) engage except in accordance with Section 10.1(d) hereof, enter into any Contract or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge letter of Veritex, is making any inquiries intent with respect to, or is considering making, a Veritex to any Acquisition Proposal of the existence of (other than a confidentiality agreement entered into in accordance with the provisions of this Section 6.12(a8.8(a)), (iii) other than informing Persons of the provisions contained in this Section 8.8, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information with respect to FFKY or FFB in connection with any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; provided, however, that, at any time prior to the receipt of the Requisite Veritex VoteEffective Time, in the event Veritex receives response to an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of that the Board of Directors of VeritexFFKY determines in good faith is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was made after the date hereof and did not result from a material breach of this Section 8.8, FFKY may (i) furnish information with respect to enforce FFKY and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement; provided, however, that all such information has previously been, or is, in substance, provided to CBIN contemporaneously as it is provided to such Person, and (ii) participate in discussions or negotiations with the Person making such Acquisition Proposal, and its officers, directors, employees, Representatives and agents regarding such Acquisition Proposal.
(b) Neither the Board of Directors of FFKY nor any existing confidentiality committee thereof shall (i) recommend, adopt or standstill agreements approve, or propose publicly to which it recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as a “FFKY Adverse Recommendation Change”) or (ii) approve or recommend, or allow FFKY or any of its the FFKY Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreementto execute or enter into, Veritex shall notany Contract, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) one or more of the consolidated assets confidentiality agreements referred to in Section 8.8(a) hereof). Notwithstanding the foregoing, if (x) FFKY receives an Acquisition Proposal, (y) the Board of Veritex Directors of FFKY shall have determined in good faith after consultation with outside counsel that the failure to take such action is reasonably likely to result in a breach of its fiduciary duties under applicable Law, and (z) FFKY provides written notice (a “Notice of Adverse Recommendation”) advising CBIN that the Board of Directors of FFKY has made the determination described in clause (y) above, then the Board of Directors of FFKY may take either or both of the following actions: (A) make a FFKY Adverse Recommendation Change and (B) upon termination of this Agreement in accordance with Section 10.1(d), approve and enter into a Contract relating to an Acquisition Proposal that constitutes a Superior Proposal.
(c) From and after the date of this Agreement, unless the Board of Directors of FFKY shall have determined reasonably and in good faith that taking such action is reasonably likely to result in a breach of its fiduciary duties under applicable Law, FFKY shall promptly (but in any event within twenty-four hours) advise CBIN of the receipt of any inquiries, requests, proposals or offers relating to an Acquisition Proposal, or any request for nonpublic information relating to FFKY or any of its Subsidiaries by any Person that informs FFKY or 25% any FFKY Representative that such Person is considering making, or more has made, an Acquisition Proposal. Any such notice shall be made in writing, shall indicate the material terms and conditions thereof and the identity of the other party or parties involved, and shall include a copy of any class such written inquiry, request, proposal or offer. FFKY agrees that it shall keep CBIN informed on a current basis of equity or voting securities the status and terms of Veritex or its Subsidiaries whose assetsany Acquisition Proposal.
(d) Nothing contained in this Section 8.8 shall prohibit FFKY from making any disclosure to FFKY shareholders if, individually or in the aggregate, constitute twenty-five percent (25%) or more good faith judgment of the consolidated assets Board of VeritexDirectors, (ii) any tender offer or exchange offer that, if consummated, failure so to disclose would be reasonably likely to result in such third party beneficially owning twenty-five percent (25%) a breach of its fiduciary duties or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexobligations under applicable Law.
Appears in 1 contract
Sources: Share Exchange Agreement (Community Bank Shares of Indiana Inc)
Acquisition Proposals. (a) Veritex shall notEach Party shall, and shall cause its Subsidiaries direct and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives toAffiliates, furnish directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or cause to be furnished nonpublic information other representative retained by such Party or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice any of its outside counsel, and with respect to financial matters, its financial advisorsSubsidiaries) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions discussions, or negotiations conducted before with any Person other than the other Parties hereto with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and use its reasonable best efforts to cause its Subsidiaries to use their reasonable best efforts to enforce, any confidentiality or similar agreement relating to any Acquisition Proposal, including by requesting any other party or parties thereto to promptly return or destroy any confidential information previously furnished by or on behalf of such Party or any of its Subsidiaries thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction.
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, each Party shall not, and shall direct and cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) not to, directly or indirectly through another Person, (i) solicit, initiate, or encourage (including by way of furnishing information or assistance), or take any other action to facilitate or that could result in, any inquiries or discussions regarding, or the making of any proposal or offer that constitutes or could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding such Party or any of its Subsidiaries to any Person other than the other Parties hereto relating to or in connection with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which or indication of interest that could reasonably be expected to lead to a Veritex an Acquisition Proposal; (iii) continue or participate in any discussions or negotiations, or otherwise communicate in any way with any Person other than the other Parties hereto, regarding any Acquisition Proposal; (iv) approve, endorse, or recommend, or execute, enter into, or consummate, any indication of interest, letter of intent, or other Contract relating to any Acquisition Proposal or requiring such Party to abandon, terminate, or fail to consummate the transactions contemplated hereby, or propose to do any of the foregoing; or (v) make or authorize any statement, recommendation, or solicitation in support of any Acquisition Proposal; provided, however, that (y) prior to the date of the SmartFinancial Meeting, if the SmartFinancial board of directors determines in good faith, after consultation with its outside legal and financial advisors, that the substance thereof (including failure to do so would cause the SmartFinancial board of directors to breach its fiduciary duties under applicable Law, SmartFinancial and SmartBank may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 7.1 that the SmartFinancial board of directors determines in good faith constitutes a Superior SmartFinancial Proposal, subject to providing 48 hours prior written notice of their decision to take such action to the Cornerstone Parties and identifying the Person making the Superior SmartFinancial Proposal and all of the material terms and conditions of such Superior SmartFinancial Proposal and compliance with Section 7.1(c), (1) furnish information with respect to SmartFinancial and SmartBank and their Subsidiaries to any Person making such Superior SmartFinancial Proposal pursuant to a customary confidentiality agreement on terms no more favorable to such Person than the identity terms contained in the Confidentiality Agreement, and (2) participate in discussions or negotiations with such Person regarding such Superior SmartFinancial Proposal, and (z) prior to the date of the person Bancshares Meeting, if the Bancshares board of directors determines in good faith, after consultation with its outside legal and financial advisors, that the failure to do so would cause the Bancshares board of directors to breach its fiduciary duties under applicable Law, Bancshares and Cornerstone may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 7.1 that the Bancshares board of directors determines in good faith constitutes a Superior Bancshares Proposal, subject to providing 48 hours prior written notice of their decision to take such action to the SmartFinancial Parties and identifying the Person making the Superior Bancshares Proposal and all of the material terms and conditions of such Superior Bancshares Proposal and compliance with Section 7.1(c), (1) furnish information with respect to Bancshares and Cornerstone and their Subsidiaries to any Person making such inquiry Superior Bancshares Proposal pursuant to a customary confidentiality agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement, and (2) participate in discussions or Veritex negotiations with such Person regarding such Superior Bancshares Proposal.
(c) In addition to the obligations of the Parties set forth above, each Party shall promptly (within not more than 24 hours) advise the other Parties orally and in writing of its receipt of any Acquisition Proposal) , or any request for information or inquiry which could be expected to lead to an Acquisition Proposal, and will shall keep Huntington reasonably apprised of any related developmentsthe other Parties informed, discussions and negotiations on a current basis, including any amendments to or revisions of the material continuing status thereof, including the terms of and conditions thereof and any changes thereto, and shall provide to the other Parties any written materials received by such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Party or any of its Subsidiaries is a party in accordance with connection therewith. Additionally, each Party shall contemporaneously provide or make available to the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not other Parties all materials provided or made available to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication pursuant to this Section 7.1 which have not been previously provided or made available to such other Parties.
(d) For the avoidance of interest indoubt, each Party expressly agrees that any breach or violation of the provisions of this Section 7.1 by any of its Subsidiaries or by any of its or its Subsidiaries’ Affiliates, directors, officers, employees, agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) shall be deemed a breach or violation of this Section 7.1 by such Party.
(e) Nothing contained in this Section 7.1 shall prevent a Party or such Party’s board of directors from (i) any acquisition taking the actions permitted by Section 7.8(b) and Section 7.9(b) of this Agreement or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) informing any tender offer or exchange offer thatPerson who submits an unsolicited, if consummated, would result in bona fide Acquisition Proposal of such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexParty’s obligations pursuant to this Section 7.1.
Appears in 1 contract
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries not to, and shall use its commercially reasonable best efforts to cause its and their respective officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal and the Board of Directors of the Company concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of consultation with its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided notice to Parent of its intention to provide such information, and shall contemporaneously provide or make available such information to HuntingtonParent if not previously provided to Parent, and shall have entered into a confidentiality non- disclosure agreement with such third party on terms no less favorable to it than the Confidentiality Non-Disclosure Agreement, which confidentiality non-disclosure agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company, but which non-disclosure agreement shall not be required to include any “standstill” or similar provision. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance terms thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any material related developments, discussions and negotiations on a current prompt basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its reasonable best efforts, subject affiliates) pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofnon-disclosure agreement. During the term of this Agreement, Veritex The Company shall not, and shall cause its Subsidiaries not to, and shall cause its and their Representatives not to on its or its Subsidiaries’ behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality non-disclosure agreement referred to and entered into in accordance with this Section 6.12(a6.11(a)) relating to any Veritex Acquisition Proposal. Proposal (each an “Acquisition Agreement”).
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five twenty percent (2520%) or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five twenty percent (2520%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries, or (iii) a merger, consolidation, share exchange or exchange, other business combination, reorganization reorganization, joint venture, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Acquisition Proposals. (a) Veritex shall not8.2.1. Notwithstanding anything contained herein to the contrary, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex if Seller receives an "Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, " (hereinafter defined) prior to the receipt satisfaction of the Requisite Veritex VoteConditions Precedent and Seller, in after consultation with and based upon the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposaladvice of Katten Muchin & Zavis or another ▇▇▇▇▇▇▇▇▇▇ ▇eco▇▇▇▇▇d law firm selected by Seller, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes have determined in good faith (after receiving that the advice recommendation of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant the Acquisition Proposal to the foregoing proviso, Veritex shall have provided such information limited partners of Seller is necessary by Seller to Huntington, and shall have entered into a confidentiality agreement comply with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board general partners of Directors of VeritexSeller to their limited partners under applicable law, then Seller shall have the right to enforce any existing confidentiality or standstill agreements terminate this Agreement upon written notice to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall notPurchaser, and Seller shall cause its Subsidiaries and its and their Representatives not deliver such written notice to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement Purchaser within seven (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)7) relating to any Veritex days after such determination. An "Acquisition Proposal. As used in this Agreement" shall mean any offer with respect to a merger, “Veritex Acquisition Proposal” shall meanacquisition, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, tender offer (i) any acquisition or purchase, direct or indirect, of twentyprovided such tender offer is offered to seventy-five percent (2575%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assetsoutstanding limited partnership interests), individually or in the aggregateexchange offer, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization consolidation or similar transaction involving Veritex involving, or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more any purchase of the consolidated assets Properties or any equity securities or partnership interests of, Seller, other than the transaction contemplated by this Agreement. Seller agrees not to solicit an Acquisition Proposal; provided, however, nothing contained herein shall prohibit Seller from furnishing information to or entering into discussions or negotiations with, any person or entity that makes a bona fide Acquisition Proposal unsolicited by Seller, if Seller, after consultation with and based upon the advice of VeritexKatten Muchin & Zavis, or anothe▇ ▇▇▇▇▇▇▇▇▇▇ recognized law firm selected by Seller, determines in good faith that such action is required for Seller to comply with the fiduciary duties of the general partners of Seller to their limited partners under applicable law. In the event this Agreement is terminated by Seller pursuant to this Paragraph 8.2 herein, this Agreement shall be null and void and the Earnest Money, shall be immediat▇▇▇ ▇▇▇urned to Purchaser together with all interest earned thereon and thereupon neither party shall have any rights against the other or have any further liability to the other, except as specifically set forth herein.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Acquisition Proposals. (a) Veritex shall Seller will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officerseach officer, directorsdirector, agentsemployee, advisors and representatives consultant, financial advisor, auditor, investment banker, attorney, accountant, agent or other advisor or representative (collectively, the “Representatives”) of Seller or any of its Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit, knowingly facilitate or encourage or knowingly facilitate (including by way of furnishing information) the making by any inquiries or proposals with respect to, Person (other than the parties hereto) of any Acquisition Proposal; (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or in connection with, or take any person relating toother action to facilitate, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making Proposal or any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt making of any Veritex Acquisition Proposal proposal that constitutes, or any inquiry which could may reasonably be expected to lead to, any Acquisition Proposal; or (iii) enter into any agreement, understanding or arrangement with respect to a Veritex an Acquisition Proposal, and the substance thereof or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, arrangement or understanding relating to an Acquisition Proposal (including the material terms and conditions of and the identity or resolve or authorize or propose to agree to do any of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developmentsforegoing); provided that, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party nothing contained in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)6.04(a) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating prohibit Seller from furnishing information to, or entering into discussions or negotiations with, any third party indication of interest inPerson that makes an unsolicited bona fide Acquisition Proposal, if (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or Seller Boards determine in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexgood faith that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal, (ii) any tender offer or exchange offer that, if consummated, would result to the extent such Person enters into a confidentiality and/or standstill agreement with Seller on terms in such third party beneficially owning twenty-five percent (25%) substance less favorable to Seller or more favorable to such Person than the corresponding terms of the Confidentiality Agreement (the “Revised Confidentiality (i) and (ii) in the proviso to the preceding sentence promptly, and in any event no later than two Business Days after its receipt thereof, and shall keep Parent reasonably informed on a current basis as to the status of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.discussions and negotiations subject to applicable Law. Immediately
Appears in 1 contract
Sources: Acquisition Agreement
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal of the existence of the provisions of this Section 6.12(a6.10(a); provided, provided that, prior to the receipt adoption of this Agreement by the stockholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal after the date of this Agreement and its Board of Directors concludes in good faith (after receiving the advice of its outside counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information to Huntington, Parent and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt approval of this Agreement by the shareholders of Company by the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality AgreementAgreement and which is expressly assignable to Purchaser, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexCompany. Veritex Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex Company will promptly (and in any event within one forty-eight (148) business dayhours) advise Huntington Purchaser following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.an Acquisition
Appears in 1 contract
Acquisition Proposals. (a) Veritex Bay Banks agrees that it shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their Subsidiaries’ officers, directors, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly solicit or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, with any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex . It shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before prior to the date of this Agreement with any person parties other than Huntington Virginia BanCorp with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) foregoing and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements similar agreement relating to which it an Acquisition Proposal. Bay Banks will inform Virginia BanCorp promptly of all relevant details of any inquiries or contacts by third parties relating to the possible disposition of the business or the capital stock of Bay Banks or any merger, change or control or other business combination involving Bay Banks. Notwithstanding the foregoing, if, at any time the Bay Banks Board determines in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of its Subsidiaries is fiduciary duties under applicable law, Bay Banks, in response to a party in accordance with written Acquisition Proposal that was unsolicited after the terms thereof. During the term date of this AgreementAgreement or that did not otherwise result from a breach of this Section 7.06, Veritex may furnish non-public information with respect to Bay Banks to the Person who made such Acquisition Proposal and participate in negotiations regarding such Acquisition Proposal.
(b) Virginia BanCorp agrees that it shall not, and shall cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors and their Representatives affiliates not to on its behalfto, enter into solicit or encourage inquiries or proposals with respect to, or engage in any letter of intentnegotiations concerning, memorandum of understandingor provide any confidential information to, agreement in principleor have any discussions with any person relating to, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in It shall immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement, “Veritex Agreement with any parties other than Bay Banks with respect to any of the foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal” shall mean, other than . Virginia BanCorp will inform Bay Banks promptly of all relevant details of any inquiries or contacts by third parties relating to the transactions contemplated by this Agreement, any offer, inquiry possible disposition of the business or proposal relating to, the capital stock of Virginia BanCorp or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange change or control or other business combinationcombination involving Virginia BanCorp. Notwithstanding the foregoing, reorganization if, at any time the Virginia BanCorp Board determines in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties under applicable law, Virginia BanCorp, in response to a written Acquisition Proposal that was unsolicited after the date of this Agreement or similar transaction involving Veritex or its Subsidiaries whose assetsthat did not otherwise result from a breach of this Section 7.06, individually or may furnish non-public information with respect to Virginia BanCorp to the Person who made such Acquisition Proposal and participate in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexnegotiations regarding such Acquisition Proposal.
Appears in 1 contract
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would could reasonably be more likely than not expected to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information to HuntingtonParent, and shall have entered into a confidentiality agreement with such third party on terms no not materially less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent, with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within one (1) business day) advise Parent of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During Unless this Agreement has been terminated in accordance with its terms, the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal). As used in this Agreement, “Veritex "Acquisition Proposal” " shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex the Company and its Subsidiaries or twenty-five (25% %) or more of any class of equity or voting securities of Veritex a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexthe Company, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization.
(b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notRYFL shall, and shall cause each of its Subsidiaries to, and use its reasonable best efforts to cause its and their respective officers, directors, agents, advisors and representatives (collectively, “Representatives”including Boenning) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activitiesexisting solicitations, discussions discussions, or negotiations conducted before with any Person concerning an Acquisition Proposal (as defined in Section 5.06(e)). During the period from the date of this Agreement with through the Effective Time, RYFL shall not terminate, amend, modify, or waive any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt material provision of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar agreement to which it RYFL or any of its Subsidiaries is a party (other than any involving FNWD).
(b) Except as permitted in accordance with the terms thereof. During the term of this AgreementSection 5.06, Veritex RYFL shall not, and shall cause its Subsidiaries and any of their respective directors, officers, and representatives (including Boenning) not to, (i) solicit, initiate, or knowingly encourage or facilitate, or take any other action designed to, or that could reasonably be expected to facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal, or (ii) initiate, participate in, or knowingly encourage any discussions or negotiations or otherwise knowingly cooperate in any way with any Person regarding an Acquisition Proposal; provided that, at any time prior to obtaining the approval of the Merger by RYFL’s stockholders, if RYFL receives an bona fide written Acquisition Proposal from a third party that was received after the date hereof (and not withdrawn) that the RYFL Board of Directors determines in good faith, after consultation with RYFL’s outside legal counsel and its financial advisor, constitutes or is reasonably likely to lead to a Superior Proposal (as defined in Section 5.06(f)) that was not solicited after the date hereof and their Representatives did not otherwise result from a breach of RYFL’s obligations under this Section 5.06, RYFL may furnish, or cause to on be furnished, non-public information with respect to RYFL and its behalfSubsidiaries to the Person who made such proposal (provided that all such information has been provided to FNWD prior to or at the same time it is provided to such Person) and may participate in discussions and negotiations regarding such proposal if (A) the RYFL Board of Directors determines in good faith, and following consultation with financial advisors and outside legal counsel, that failure to do so would be reasonably likely to result in a breach of its fiduciary duties to RYFL’s stockholders under applicable Law, and (B) prior to taking such action, RYFL enters into a confidentiality agreement with respect to such proposal (which shall permit RYFL to comply with the terms of Section 5.06(b) and (c) hereof) containing provisions at least as restrictive to such receiving Person as the provisions are to FNWD in the Confidentiality Agreement (as defined in Section 11.08), a copy of which shall be provided to FNWD promptly (but in no event later than 24 hours) after the execution thereof. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(b) by any representative (including Boenning) of RYFL or its Subsidiaries shall be a breach of this Section 5.06 by RYFL.
(c) Neither the RYFL Board of Directors nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw, or modify in a manner adverse to FNWD or propose to withdraw or modify in a manner adverse to FNWD (or take any action inconsistent with) the recommendation by such RYFL Board of Directors or any such committee regarding this Agreement or the Merger, or approve or recommend, or propose to recommend, the approval or recommendation of any Acquisition Proposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) cause or permit RYFL or Royal Bank to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, option agreement, joint venture agreement, partnership agreement, or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of RYFL’s stockholders to approve the Merger, the RYFL Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change; provided that, the RYFL Board of Directors determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the stockholders of RYFL under applicable Law; provided further that, the RYFL Board of Directors may not effect such an Adverse Recommendation Change unless (A) the RYFL Board of Directors shall have first provided prior written notice to FNWD (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new seven business day period), and (B) FNWD does not make, within seven business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the RYFL Board of Directors (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the RYFL Board of Director’s fiduciary duties to the stockholders of RYFL under applicable Law. As used RYFL agrees that, during the seven business day period prior to its effecting an Adverse Recommendation Change, RYFL and its officers, directors, and representatives shall negotiate in this Agreementgood faith with FNWD and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by FNWD.
(d) In addition to the obligations of RYFL set forth in paragraphs (a), (b), and (c) of this Section 5.06, RYFL shall as promptly as possible, and in any event within two business days after RYFL first obtains knowledge of the receipt thereof, advise FNWD orally and in writing of (i) any Acquisition Proposal or any request for information that RYFL reasonably believes could lead to or contemplates an Acquisition Proposal, or (ii) any inquiry RYFL reasonably believes could lead to any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions), and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request, or inquiry, if there occurs or is presented to RYFL any offer, inquiry material change, modification, or proposal development to a previously made offer, letter of intent, or any other material development, RYFL (or its outside counsel) shall (A) advise and confer with FNWD (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto, and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request or inquiry, and (B) promptly upon receipt or delivery thereof provide FNWD with true, correct, and complete copies of any document or communication related thereto.
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal, or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income, or assets of Veritex RYFL and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex RYFL or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex RYFL or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange, or similar transaction involving Veritex RYFL, Royal Bank, or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of RYFL, Royal Bank, or any of RYFL’s other Subsidiaries or of any resulting parent company of RYFL or Royal Bank; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent, or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to FNWD of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, and as used elsewhere in this Agreement, a “Person” shall include a natural person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 1 contract
Sources: Merger Agreement (Finward Bancorp)
Acquisition Proposals. (a) Veritex shall notNo Alliance Entity shall, and it shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (ia) solicit, initiate, solicitencourage (including by providing information or assistance), knowingly encourage facilitate or knowingly facilitate induce any inquiries or proposals with respect toAcquisition Proposal, (iib) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect toor negotiations regarding, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any nonpublic information with respect to, or data and participate take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (c) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (d) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in such negotiations this Section 7.2 by any Subsidiary or discussions Representative of Alliance shall constitute a breach of this Section 7.2 by Alliance.
(b) Notwithstanding anything to the extent contrary in Section 7.2(a), if Alliance or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to the Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Alliance and its Board Representatives may, prior to (but not after) the Shareholders’ Meeting, take the following actions if the board of Directors concludes directors of Alliance (or any committee thereof) has (i) determined, in its good faith judgment (after receiving consultation with Alliance’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not would cause it to result in a violation of violate its fiduciary duties under applicable law; providedLaw, further, that, prior and (ii) obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or concurrently “Group” as the terms of the Confidentiality Agreement is in each provision with providing any nonpublic respect to WSFS: (A) furnish information permitted to be provided pursuant to the foregoing proviso, Veritex (but only if Alliance shall have provided such information to HuntingtonWSFS prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or “Group” with respect to such bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Alliance shall advise WSFS in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and Alliance shall as promptly as practicable provide to WSFS (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Alliance shall provide WSFS as promptly as practicable with notice setting forth all such information as is necessary to keep WSFS informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Shareholders’ Meeting, if Alliance has received a Superior Proposal (after giving effect to the terms of any revised offer by WSFS pursuant to this Section 7.2(d)), the board of directors of Alliance may, in connection with the Superior Proposal, make a Change in the Alliance Recommendation (including, for the avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the board of directors of Alliance has determined in good faith, after consultation with outside legal counsel, that the failure to take such action more likely than not would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Alliance may not take the actions set forth in this Section 7.2(d) unless:
(i) Alliance has complied in all material respects with this Section 7.2;
(ii) Alliance has provided prior written notice to WSFS at least four Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise WSFS that the board of directors of Alliance has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Alliance has and has caused its financial advisors and outside legal counsel to, negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Alliance) a Superior Proposal; and
(iv) the board of directors of Alliance has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Alliance shall deliver a new written notice to WSFS and shall comply with the requirements of this Section 7.2 with respect to such new written notice. Notwithstanding any Change in the Alliance Recommendation, this Agreement shall be submitted to the shareholders of Alliance at the Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Alliance of such obligation; provided, that if the board of directors of Alliance shall have entered into effected a confidentiality agreement Change in the Alliance Recommendation, then the board of directors of Alliance, in connection with such third party on terms no less favorable the submission of this Agreement to it the shareholders of Alliance may submit this Agreement without recommendation (although the resolution adopting this Agreement as of the date hereof may not be rescinded), in which event the board of directors of Alliance may communicate the basis for its lack of a recommendation to the shareholders of Alliance in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Alliance shall not submit to the vote of its shareholders any Acquisition Proposal other than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willMerger.
(e) Alliance and Alliance Subsidiaries shall, and will use its reasonable best efforts to cause Alliance shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Persons conducted heretofore with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal offer or any inquiry which could proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to a Veritex any Person (other than WSFS and its Representatives) that has made or indicated an intention to make an Acquisition Proposal, and the substance thereof (including the material terms and conditions iii) not waive or amend any “standstill” provision or provisions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements similar effect to which it or any of its Subsidiaries is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(f) Nothing contained in accordance this Agreement shall prevent Alliance or its board of directors from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the terms thereofExchange Act with respect to an Acquisition Proposal or from making any disclosure to the shareholders of Alliance if the board of directors of Alliance (after consultation with outside legal counsel) concludes that its failure to do so more likely than not would be a violation of the directors’ fiduciary duties under applicable Law. During Issuance of any such communication shall be deemed a Change in the term Alliance Recommendation unless the communication includes a reaffirmation of the Alliance Recommendation in favor of adoption and approval by the shareholders of Alliance of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the stockholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal after the date of this Agreement and its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information to Huntington, Purchaser and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Purchaser in writing following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of (including a copy of the most recent proposed acquisition agreement, if any), and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington Purchaser reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law law, to, within ten (10) business days after the date hereof, request and confirm the fiduciary duties return or destruction of the Board of Directors of Veritex, any confidential information provided to enforce any person (other than Purchaser and its affiliates and its and their Representatives) pursuant to any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal. Unless this Agreement is contemporaneously terminated in accordance with its terms, the terms thereof. During the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement or other similar definitive transaction agreement in respect of an Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notThe Company shall, and shall direct and cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives toAffiliates, furnish directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or cause to be furnished nonpublic information other representative retained by the Company or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice any of its outside counsel, and with respect to financial matters, its financial advisorsSubsidiaries) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions discussions, or negotiations conducted before with any Person other than Reliant and Reliant Bank with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use its reasonable best efforts to enforce, and will direct and cause its Subsidiaries to use their reasonable best efforts to enforce, any confidentiality, nondisclosure, or similar agreement relating to any Acquisition Proposal, including by requesting any other party or parties thereto to promptly return or destroy any confidential information previously furnished by or on behalf of the First Advantage Parties or any of their respective Subsidiaries thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction.
(b) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and use its best efforts to cause its Subsidiaries and its and its Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by the Company or any of its Subsidiaries) not to, directly or indirectly through another Person, (i) solicit, initiate, or knowingly encourage (including by way of furnishing information or assistance), or take any other action to knowingly facilitate or that could reasonably be expected to result in, any inquiries or discussions regarding, or the making of any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Company or any of its Subsidiaries to any Person other than Reliant and Reliant Bank relating to or in connection with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; (iii) continue or participate in any discussions or negotiations, or otherwise communicate in any way with any Person other than Reliant and Reliant Bank, regarding any Acquisition Proposal; (iv) approve, endorse, or recommend, or execute, enter into, or consummate, any indication of interest, letter of intent, or other Contract relating to any Acquisition Proposal or requiring the Company to abandon, terminate, or fail to consummate the transactions contemplated by this Agreement, or propose to do any of the foregoing; or (v) subject to the Company’s rights under Section 7.7, make or authorize any statement, recommendation, or solicitation in support of any Acquisition Proposal; provided, however, that prior to the date the shareholders of Company approve this Agreement, if the Company’s board of directors determines in good faith, after consultation with its outside legal and financial advisors, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, the Company may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 7.1 that the Company’s board of directors determines in good faith constitutes or is reasonably likely to result in a Superior Proposal, and subject to providing 48 hours prior written notice of their decision to take such action to Reliant and identifying the Person making the Superior Proposal and all of the material terms and conditions of such Superior Proposal and compliance with Section 7.1(c), (A) furnish information with respect to the First Advantage Parties to any Person making such Superior Proposal pursuant to a confidentiality agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement (which confidentiality agreement shall not provide such Person the exclusive right to negotiate with the First Advantage Parties) and (B) participate in discussions or negotiations with such Person regarding such Superior Proposal.
(c) In addition to the obligations of the Company set forth above, the Company shall promptly (orally within not more than 24 hours and in writing within two (2) calendar days) advise Reliant of its or any of its Subsidiaries’ receipt of any Acquisition Proposal, or any request for information or inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and shall keep Reliant informed, on a prompt basis, of any material changes in the substance thereof (status thereof, including the material terms and conditions of thereof and any changes thereto, and shall provide to Reliant any written materials received by the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with connection therewith. Additionally, the terms thereof. During the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not contemporaneously provide or make available to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement Reliant all materials provided or other similar agreement (other than a confidentiality agreement referred made available to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication pursuant to this Section 7.1 which have not been previously provided or made available to Reliant.
(d) For the avoidance of interest indoubt, the Company expressly agrees that any breach or violation of any provision of this Section 7.1 by any of its Subsidiaries or by any of its or its Subsidiaries’ Affiliates, directors, officers, employees, agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) shall be deemed a breach or violation of this Section 7.1 by the Company for which the Company shall be responsible.
(e) Nothing contained in this Section 7.1 shall prevent the Company or its board of directors, as applicable, from (i) any acquisition taking the actions permitted by Section 7.7(b) of this Agreement or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) informing any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more Person who submits an unsolicited Acquisition Proposal of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexCompany’s obligations pursuant to this Section 7.1.
Appears in 1 contract
Acquisition Proposals. (a) Veritex UroCor shall not, and nor shall cause it permit any of its Subsidiaries and use to, nor shall it authorize or permit any of its reasonable best efforts to cause its and their officers, directors, agentsofficers or employees or any investment banker, advisors and representatives (collectivelyfinancial advisor, “Representatives”) not attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectlyindirectly through another Person, (i) initiate, solicit, knowingly initiate or encourage (including by way of furnishing information), or knowingly facilitate take any other action to facilitate, any inquiries or proposals with respect the making of any proposal or offer other than the Merger that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below) or (ii) engage enter into, continue or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or otherwise participate in any discussions withor negotiations regarding, or furnish to any person relating to, Person any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries information with respect to, or is considering making, a Veritex accept or implement any Acquisition Proposal of the existence of the provisions of this Section 6.12(a)Proposal; provided, thathowever, that if, prior to the receipt time at which the Required UroCor Vote shall have been obtained, a majority of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties members of the Board of Directors of VeritexUroCor determines in good faith (after consultation with outside counsel) that failure to do so would result in a breach of the fiduciary duties of such Board to UroCor's stockholders under applicable law, UroCor may, in response to enforce any existing confidentiality or standstill agreements an Acquisition Proposal (as defined below) which did not result from a breach of this Section 5.5, and which the Board of Directors of UroCor determines is reasonably likely to which it or any result in a Superior Proposal, and subject to providing prior written notice of its Subsidiaries is a party in accordance decision to take such action to Dianon and compliance with the terms thereof. During the term of this AgreementSection 5.5, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not furnish information with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex UroCor and its Subsidiaries to any Person making such Acquisition Proposal pursuant to a customary confidentiality agreement (provided that if such confidentiality agreement contains provisions that are less restrictive than the comparable provision in, or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assetsomits restrictive provisions, individually or contained in the aggregateConfidentiality Agreement, constitute twenty-five percent (25%then the Confidentiality Agreement shall be deemed amended to contain only such less restrictive provisions or to omit such restrictive provisions as applicable) and participate in discussions or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in negotiations regarding such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexAcquisition Proposal.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notWestbank agrees that neither it nor any of Westbank's Subsidiaries shall, and that it shall cause its Subsidiaries direct and use its reasonable best efforts in good faith to cause its and their each such Subsidiary's directors, officers, directorsemployees, agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to an Acquisition Proposal. Westbank further agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts in good faith to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, (ii) directly or indirectly, engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex to an Acquisition Proposal, except or otherwise knowingly facilitate any effort or attempt to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, make or is considering making, a Veritex implement an Acquisition Proposal of the existence of the provisions of this Section 6.12(a)Proposal; provided, thathowever, prior that nothing contained in this Agreement shall prevent Westbank or its Board of Directors from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to the receipt of the Requisite Veritex Vote, in the event Veritex receives a request therefor by a Person who has made an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause Proposal if the Westbank Board of Directors receives from the Person so requesting such information an executed confidentiality agreement substantially similar to be furnished nonpublic information or data and participate that entered into with NewAlliance; (C) engaging in such any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of Westbank, if and only to the extent that its that, in each such case referred to in clause (B), (C) or (D) above, (i) the Westbank Board of Directors concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not required in order for its directors to result in a violation of its comply with their respective fiduciary duties under applicable law; provided, further(ii) the Westbank Board of Directors determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, thatif accepted, prior to or concurrently with providing any nonpublic information permitted is reasonably likely to be provided pursuant to consummated, taking into account all legal, financial and regulatory aspects of the foregoing proviso, Veritex shall have provided such information to Huntingtonproposal and the Person making the proposal, and shall have entered into would, if consummated, result in a confidentiality agreement with such third party on terms no less transaction more favorable to it Westbank's shareholders from a financial point of view than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willMerger, and (iii) the shareholders of Westbank have not yet approved this Agreement at the Westbank Shareholders Meeting. An Acquisition Proposal which is received and considered by Westbank in compliance with this Section 6.10 and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a "Superior Proposal." Westbank agrees that it will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington parties conducted heretofore with respect to any Veritex Acquisition ProposalProposals. Veritex Westbank agrees that it will promptly (and in any event notify NewAlliance orally within one (1) business dayBusiness Day, with written notice to follow within three (3) advise Huntington following receipt of Business Days thereafter, if any Veritex Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to a Veritex Acquisition Proposalinitiated or continued with Westbank or any of its representatives after the date hereof, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry inquiry, proposal or Veritex Acquisition Proposal) offer and the substance thereof and will keep Huntington reasonably apprised NewAlliance informed of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of material developments with respect thereto immediately upon the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and occurrence thereof.
(b) In the fiduciary duties of event that the Board of Directors of VeritexWestbank determines in good faith, after consultation with its financial advisor and upon advice from outside counsel, that it desires to enforce any existing confidentiality or standstill agreements to which accept a Superior Proposal, it or any shall notify NewAlliance in writing of its Subsidiaries is a party intent to terminate this Agreement in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not order to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, an acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance each an "Acquisition Agreement") with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating respect to, or any third party indication of interest inrecommend acceptance of, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more the Superior Proposal. Such notice shall specify all of the consolidated assets terms and conditions of Veritex such Superior Proposal and its Subsidiaries or 25% or more identify the Person making such Superior Proposal. NewAlliance shall have five Business Days to evaluate and respond to Westbank's notice. If NewAlliance delivers to Westbank in writing prior to the expiration of any class the five Business Day period provided above (x) an amendment to Sections 3.1.2, 3.1.3 and 3.1.4 of equity or voting securities this Agreement increasing the Merger Consideration to an amount, and (y) adjusting other material terms and conditions such that they are at least equal to that of Veritex or its Subsidiaries whose assetssuch Superior Proposal (the "NewAlliance Amendment"), individually or as determined by Westbank's Board of Directors in the aggregategood faith exercise of its fiduciary duties after consultation with its financial advisors and counsel, constitute twenty-then Westbank shall accept the NewAlliance Amendment and reject the Superior Proposal. Westbank shall have five percent Business Days to evaluate the NewAlliance Amendment.
(25%c) or more In the event that the Board of Directors of Westbank determines under Section 6.10(b) that the consolidated assets of VeritexNewAlliance Amendment is not at least equal to the Superior Proposal, (ii) any tender offer or exchange offer that, if consummated, would result Westbank can terminate this Agreement in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexorder to execute an Acquisition Agreement with respect to, or (iii) to allow its Board to adopt a mergerresolution recommending acceptance to Westbank's shareholders of, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or the Superior Proposal as provided in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexSection 11.1.9.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall notWestborough agrees that neither it nor any of its officers, trustees, or directors shall, and that Westborough shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officersemployees, directors, agents, advisors agents and representatives (collectivelytogether with Westborough's officers, “directors and trustees, the "Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate (including, without limitation, by way of furnishing confidential information or data) any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data toregarding, or have or participate in any discussions withthe making of, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal (other than by AVB). Westborough further agrees that neither it nor any of the existence of the provisions of this Section 6.12(a); providedits officers, thatdirectors or trustees shall, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it maydirectly or indirectly, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex Westborough shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives not to, engage in any negotiations concerning, or provide any confidential information or data to or have any discussions with, any Person relating to an Acquisition Proposal, or enter into any definitive agreement, arrangement or understanding with respect to an Acquisition Proposal or requiring it (or conditioned upon requiring it) to abandon, terminate or fail to consummate the MHC Merger, the Mid-Tier Merger or any other transactions contemplated by this Agreement; provided, however, that nothing contained in this Agreement shall prevent Westborough Financial or the Westborough Financial Board, between the date of this Agreement and prior to the date of Westborough Financial Meeting, from (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Westborough Financial Board receives from the Person so requesting such information an executed confidentiality agreement no less favorable to it than the Confidentiality Agreement entered into on May 12, 2006 by AVB and Westborough Financial (and Westborough Financial shall enforce and not waive any provision of any confidentiality agreement entered into with any such Person contemplated by this Section 7.7); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the shareholders of Westborough Financial, if and only to the extent that, (i) in each such case referred to in clause (A), (B) or (C) above, the Westborough Financial Board determines in good faith (after consultation with outside legal counsel) and by a majority vote of the entire Westborough Financial Board that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law, (ii) in each such case referred to in clause (A) or (B) above, the Westborough Financial Board also determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to lead to a Superior Proposal (as hereinafter defined), and (iii) in the case referred to in clause (C) above, (w) the Westborough Financial Board also determines in good faith (after consultation with its financial advisor) and by a majority of the entire Westborough Financial Board that such Acquisition Proposal is a Superior Proposal, (x) Westborough Financial Board has given AVB five (5) Business Days' prior written notice of its intention to recommend such Acquisition Proposal to the shareholders of Westborough Financial, (y) the Westborough Financial Board has considered any changes to the Aggregate Merger Consideration, Per Share Merger Consideration or to this Agreement (if any) proposed by AVB, and (z) Westborough Financial Board has determined in good faith and by a majority vote of the entire Westborough Financial Board, after consultation with Westborough Financial's outside legal counsel and after consultation with its financial advisor, that such unsolicited proposal remains a Superior Proposal even after the changes proposed by AVB. A "Superior Proposal" shall be a bona fide Acquisition Proposal for 100% of the outstanding securities of Westborough Financial that is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and, if consummated, is reasonably likely to result in a transaction more favorable to Westborough MHC and to Westborough Financial's shareholders from a financial point of view than the Mid-Tier Merger. Nothing contained in this Agreement shall prevent Westborough Financial or the Westborough Financial Board from complying with its disclosure obligations under Rule 14d-9 or 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal (it being understood that if any such disclosure constitutes or contemplates (i) a withholding, withdrawing, modification, amendment or qualification to the Westborough Financial Board Recommendation that is adverse to AVB or (ii) recommendation of an Acquisition Proposal, Westborough Financial shall comply with all provisions of this Section 7.7). Westborough agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted before heretofore with respect to any Acquisition Proposals and shall request the return or destruction of all confidential information provided to any such parties prior to the date of this Agreement with Agreement. Westborough Financial agrees that it will notify AVB immediately if any person other than Huntington with respect inquiries, proposals or offers are received by, any such information is requested from, or any discussions or negotiations are sought to be initiated or continued with, any Veritex of its Representatives relating to an Acquisition Proposal. Veritex Westborough will promptly (and in any event within one (1) business dayBusiness Day) advise Huntington AVB following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably AVB apprised of any related developments, discussions and negotiations (including the terms and conditions (and any amendments or modifications thereto) of the Acquisition Proposal) on a current basis, including . Westborough Financial will use its best efforts to enforce (and will not waive any amendments provisions of) any confidentiality or similar agreement entered into by it or on its behalf by RBC or otherwise relating to or revisions of the material terms of such inquiry or Veritex a potential Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Sources: Merger Agreement (Westborough Financial Services Inc)
Acquisition Proposals. (a) Veritex shall notNo Alliance Entity shall, and it shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, (ia) solicit, initiate, solicitencourage (including by providing information or assistance), knowingly encourage facilitate or knowingly facilitate induce any inquiries or proposals with respect toAcquisition Proposal, (iib) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect toor negotiations regarding, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any nonpublic information with respect to, or data and participate take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (c) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (d) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in such negotiations this Section 7.2 by any Subsidiary or discussions Representative of Alliance shall constitute a breach of this Section 7.2 by Alliance.
(b) Notwithstanding anything to the extent that its Board of Directors concludes contrary in good faith (after receiving the advice Section 7.2(a), if Alliance or any of its outside counselRepresentatives receives an unsolicited, bona fide written Acquisition Proposal by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to the Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Alliance and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, thatRepresentatives may, prior to (but not after) the Shareholders’ Meeting, take the following actions if the board of directors of Alliance (or concurrently any committee thereof) has (i) determined, in its good faith judgment (after consultation with providing any nonpublic information permitted to be provided pursuant to the foregoing provisoAlliance’s financial advisors and outside legal counsel), Veritex shall have provided that such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal constitutes or any inquiry which could reasonably be expected to lead to a Veritex Superior Proposal and that the failure to take such actions more likely than not would cause it to violate its fiduciary duties under applicable Law, and (ii) obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of the Confidentiality Agreement is in each provision with respect to WSFS: (A) furnish information to (but only if Alliance shall have provided such information to WSFS prior to furnishing it to any such Person or “Group”), and (B) enter into discussions and negotiations with, such Person or “Group” with respect to such bona fide written Acquisition Proposal.
(c) Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Alliance shall advise WSFS in writing of the receipt of such Acquisition Proposal, request or inquiry, and the substance thereof (including the material terms and conditions of and such Acquisition Proposal, request or inquiry (including, in each case, the identity of the person Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such inquiry or Veritex Acquisition Proposal, request or inquiry), and Alliance shall as promptly as practicable provide to WSFS (i) and will keep Huntington reasonably apprised a copy of any related developmentssuch Acquisition Proposal, discussions and negotiations on request or inquiry, if in writing, or (ii) a current basis, including any amendments to or revisions written summary of the material terms of such inquiry or Veritex Acquisition Proposal, request or inquiry, if oral. Veritex Alliance shall use its reasonable best effortsprovide WSFS as promptly as practicable with notice setting forth all such information as is necessary to keep WSFS informed on a current basis in all material respects of all communications regarding (including material amendments or proposed material amendments to) such Acquisition Proposal, subject request or inquiry.
(d) Notwithstanding anything herein to applicable law and the contrary, at any time prior to the Shareholders’ Meeting, if Alliance has received a Superior Proposal (after giving effect to the terms of any revised offer by WSFS pursuant to this Section 7.2(d)), the board of directors of Alliance may, in connection with the Superior Proposal, make a Change in the Alliance Recommendation (including, for the avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if the board of directors of Alliance has determined in good faith, after consultation with outside legal counsel, that the failure to take such action more likely than not would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Alliance may not take the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party actions set forth in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement Section 7.2(d) unless:
(i) Alliance has complied in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance all material respects with this Section 6.12(a)7.2;
(ii) relating Alliance has provided prior written notice to WSFS at least four Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise WSFS that the board of directors of Alliance has received a Superior Proposal and shall include a copy of such Superior Proposal;
(iii) during the Notice Period, Alliance has and has caused its financial advisors and outside legal counsel to, negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the judgment of the board of directors of Alliance) a Superior Proposal; and
(iv) the board of directors of Alliance has determined in good faith, after considering the results of such negotiations and giving effect to any Veritex Acquisition proposals, amendments or modifications made or agreed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal. As used If during the Notice Period any revisions are made to the Superior Proposal, Alliance shall deliver a new written notice to WSFS and shall comply with the requirements of this Section 7.2 with respect to such new written notice. Notwithstanding any Change in the Alliance Recommendation, this AgreementAgreement shall be submitted to the shareholders of Alliance at the Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve Alliance of such obligation; provided, “Veritex that if the board of directors of Alliance shall have effected a Change in the Alliance Recommendation, then the board of directors of Alliance, in connection with the submission of this Agreement to the shareholders of Alliance may submit this Agreement without recommendation (although the resolution adopting this Agreement as of the date hereof may not be rescinded), in which event the board of directors of Alliance may communicate the basis for its lack of a recommendation to the shareholders of Alliance in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Alliance shall not submit to the vote of its shareholders any Acquisition Proposal” shall mean, Proposal other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexMerger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alliance Bancorp, Inc. Of Pennsylvania)
Acquisition Proposals. (a) Veritex shall From and after the date hereof, the Company will not, and shall cause will not authorize or permit any of its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives employees or agents (collectively, “its "Representatives”) not to"), directly or indirectly, (i) initiate, to solicit, initiate or knowingly encourage (including by way of furnishing information) or take any other action to facilitate knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal proposal which constitutes or any inquiry which could may reasonably be expected to lead to a Veritex an Acquisition Proposal (as defined below) from any person, or engage in any discussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however that notwithstanding any other provision hereof: (a) the Special Committee may at any time prior to the receipt of Company Stockholder Approval, engage in discussions or negotiations with a third party who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the Company or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the substance thereof extent that, (including i) (A) the material terms and conditions of and third party has first made an Acquisition Proposal that is more favorable to the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries Company and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement stockholders (other than a confidentiality agreement referred to COLA and entered into in accordance with this Section 6.12(a)holders of the Excluded Shares) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this AgreementAgreement and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (as determined in good faith in each case by the Special Committee after consultation with its financial advisors) and (B) the Special Committee shall conclude in good faith, any offerafter considering applicable provisions of state law, inquiry on the basis of oral or proposal relating towritten advice of outside counsel (who may be the Company's regularly engaged independent counsel) that such action is necessary for the Special Committee to act in a manner consistent with its fiduciary duties under applicable law and (ii) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company (A) provides three Business Days' prior written notice to COLA to the effect that it is furnishing information to or any entering into discussions or negotiations with such person or entity and (B) receives from such person or entity an executed confidentiality agreement in reasonably customary form; (b) the Special Committee may withdraw or modify its recommendation referred to in Article 6.3 following receipt of a bona fide unsolicited Acquisition Proposal from a third party indication of interest in, if (i) the Special Committee, after consultation with and receipt of advice from the Financial Advisor or another nationally recognized investment banking firm, determines in good faith in the exercise of its fiduciary obligations under applicable law that the Acquisition Proposal is more favorable to the Company and its stockholders (other than COLA and holders of the Excluded Shares) than the transactions contemplated by this Agreement and (ii) the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), determines in good faith that such action is necessary for the Special Committee to comply with its fiduciary obligations under applicable law and/or (c) the Board of Directors, upon the recommendation of the Special Committee, may comply with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or take any acquisition other required action (including, without limitation, the making of such public disclosures as may be necessary or purchaseadvisable under applicable securities laws) and provided further, direct that, in the event of an exercise of the Company's or indirectits Board of Director's or the Special Committee's rights under clause (a), (b) or (c) above, notwithstanding anything contained in this Agreement to the contrary, such action shall not constitute a breach of twenty-five this Agreement by the Company but shall only give rise to the rights specified in Article 8.3 to the extent provided therein. As of the date of this Agreement, the Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by the Company with respect to the foregoing. The Company shall notify COLA orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal and the identify of the person making it), within 24 hours of the receipt thereof, shall keep COLA informed of the status and details of any such inquiry, offer or proposal, and shall give COLA three Business Days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. As used herein, "Acquisition Proposal" means any proposal or offer to acquire, directly or indirectly, in one transaction or a series of related transactions, twenty percent (2520%) or more of the consolidated assets outstanding shares of Veritex and its Subsidiaries the Company's Common Stock (whether by purchase, merger, consolidation, share exchange, business combination or 25% other similar transaction) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated dollar value of the assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexCompany.
Appears in 1 contract
Acquisition Proposals. (a) Veritex MidSouth shall not, and shall cause its Subsidiaries and shall use its commercially reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt of the Requisite Veritex MidSouth Vote, in the event Veritex MidSouth receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex MidSouth shall have provided such information to HuntingtonH▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexMidSouth. Veritex MidSouth will, and will use its commercially reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington H▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to any Veritex Acquisition Proposal. Veritex MidSouth will promptly (and in any event within one (1) business dayBusiness Day) advise Huntington H▇▇▇▇▇▇ ▇▇▇▇▇▇▇ following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within one (1) Business Day) advise H▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex MidSouth shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex MidSouth shall not, and shall cause its Subsidiaries and its and their Representatives officers, directors, agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.11(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry offer or proposal relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 15% or more of the consolidated assets of Veritex MidSouth and its Subsidiaries or 2515% or more of any class of equity or voting securities of Veritex MidSouth or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 15% of the consolidated assets of VeritexMidSouth, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more than 15% of any class of equity or voting securities of Veritex MidSouth or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 15% of the consolidated assets of VeritexMidSouth, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex MidSouth or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 15% of the consolidated assets of VeritexMidSouth, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Seller will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officerseach officer, directorsdirector, agentsemployee, advisors and representatives consultant, financial advisor, auditor, investment banker, attorney, accountant, agent or other advisor or representative (collectively, “the "Representatives”") of Seller or any of its Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit, knowingly facilitate or encourage or knowingly facilitate (including by way of furnishing information) the making by any inquiries or proposals with respect to, Person (other than the parties hereto) of any Acquisition Proposal; (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or in connection with, or take any person relating toother action to facilitate, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making Proposal or any inquiries with respect to, or is considering makingthe making of any proposal that constitutes, a Veritex or may reasonably be expected to lead to, any Acquisition Proposal; or (iii) enter into any agreement, understanding or arrangement with respect to an Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, arrangement or understanding relating to an Acquisition Proposal (or resolve or authorize or propose to agree to do any of the existence foregoing); provided that, nothing contained in this Section 6.04(a) shall prohibit Seller from furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide Acquisition Proposal, if (i) the Seller Boards determine in good faith that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal, (ii) to the extent such Person enters into a confidentiality and/or standstill agreement with Seller on terms in substance less favorable to Seller or more favorable to such Person than the corresponding terms of the Confidentiality Agreement (the "Revised Confidentiality Terms"), Seller provides Parent with a copy of the Revised Confidentiality Terms and agrees that the corresponding terms of the Confidentiality Agreement shall, if so requested by the Affiliates of Parent which are parties thereto, be amended (including, if there are no corresponding Revised Confidentiality Terms, by deleting the relevant provisions of the Confidentiality Agreement) so that they are substantially similar to the Revised Confidentiality Terms and (iii) the Required Seller Vote has not yet been obtained. Seller shall notify Parent of having received any written Acquisition Proposal (and provide a copy thereof) and any other Acquisition Proposal with respect to which it proposes to take the actions permitted by clauses (i) and (ii) in the proviso to the preceding sentence promptly, and in any event no later than two Business Days after its receipt thereof, and shall keep Parent reasonably informed on a current basis as to the status of any discussions and negotiations subject to applicable Law. Immediately after the execution and delivery of this Agreement, Seller will, and will cause its Subsidiaries, and its and their Representatives to, cease and terminate any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any possible Acquisition Proposal unless such Persons makes an unsolicited Acquisition Proposal and Seller has complied with the provisions of this Section 6.12(a6.04(a) in all material respects. Nothing in this Section 6.04 shall permit Seller to terminate this Agreement or affect any other obligations of Seller under this Agreement (except as specifically provided in Sections 10.03(b); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives ). "Superior Proposal" shall mean an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and Proposal with respect to which the Seller Boards have determined in good faith, after consultation with their financial mattersadvisors and legal advisors and taking into account all relevant factors, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) offeror and will keep Huntington reasonably apprised all legal, financial, regulatory and other aspects of the proposal, including the terms of any related developmentsfinancing, discussions and negotiations on that (x) if accepted, such Acquisition Proposal would result in a current basis, including any amendments transaction more favorable from a financial point of view to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other Seller's shareholders than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication Agreement and (y) is reasonably capable of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if being consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the 30th calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) shall have the right (under the direction of the Company Board) to: (i) initiate, solicit, facilitate and encourage any Acquisition Proposal, including by way of providing access to non-public information to any Person pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement executed by the Person receiving such non-public information that is and will remain in effect at least until the Outside Date (provided that (A) the Company shall promptly make available to Parent and Merger Subsidiary any material non-public information that the Company provides to any person given such access that was not previously provided to or made available to Parent or Merger Subsidiary, and shall give Parent and Merger Subsidiary notice confirming that such disclosure is being made pursuant to the Company’s obligations under this Section 7.03(a) and (B) the Company and its Subsidiaries and their respective Representatives shall withhold such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any pricing or other matters that are highly sensitive or competitive in nature if the exchange of such information (or portions thereof), in the Company’s reasonable judgment, would reasonably be likely to be harmful to the operation of the Company or its Subsidiaries in any material respect); and (ii) engage or enter into, continue or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with, or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals.
(b) Except as expressly permitted by this Section 7.03, from and after the Solicitation Period End Date (and, with respect to subclauses (iii) through (vi) (and subclause (vii) to the extent it relates to subclauses (iii) through (vi)) of this clause (b), from and after the execution and delivery of this Agreement) until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company (and the Company Board or any committee thereof) shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause direct its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) respective Representatives not to, directly or indirectly, (i) solicit, initiate, solicit, knowingly encourage engage in or knowingly facilitate or knowingly encourage the submission of any inquiries inquiry, discussion, offer or proposals with respect request that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, other than informing Persons of the existence of this Section 7.03, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data toenter into, or have continue or participate in any discussions or negotiations with, furnish any person non-public information relating toto the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any Veritex of its Subsidiaries to any Third Party in connection with an Acquisition Proposal, except (iii) adopt, approve, endorse or recommend (or publicly propose to notify a person that has made oradopt, to the knowledge of Veritexapprove, is making endorse or recommend) any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected letter of intent, term sheet, or other Contract contemplating an Acquisition Proposal or requiring the Company to lead abandon or terminate its obligations under this Agreement (an “Alternative Acquisition Agreement”), (iv) (A) withhold, withdraw or modify, or publicly propose to withhold, withdraw or modify, in a Veritex manner adverse to Parent and/or the Merger Subsidiary, the Company Board Recommendation, including failure to include such recommendations in the Schedule 14D-9, (B) approve or recommend, or publicly propose to approve or recommend, to the Company’s stockholders, an Acquisition Proposal, and the substance thereof Proposal or (including the material terms and conditions of and the identity C) fail to recommend against any Acquisition Proposal subject to Regulation 14D of the person making such inquiry or Veritex Acquisition ProposalExchange Act in any Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of Business days after the material terms commencement of such inquiry Acquisition Proposal (any action described in this clause (iv), an “Adverse Recommendation Change”), (v) approve any transaction under, or Veritex Acquisition Proposal. Veritex shall use its reasonable best effortsany Person becoming an “interested stockholder” under, subject to Section 203 of Delaware Law or any other applicable law and Takeover Statute, (vi) if a Rights Plan adopted by the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with effect, without Parent’s prior written consent (in its sole discretion), exempt any Person (other than Parent, Merger Subsidiary or their Affiliates) or any transaction (other than the terms thereof. During Offer, the term of Top-Up Option, the Merger and the other transactions contemplated by this Agreement) from the applicability of any restrictions set forth in such Rights Plan or otherwise render any of the restrictions set forth in such Rights Plan inapplicable to any Person (other than Parent, Veritex shall notMerger Subsidiary or their Affiliates) or any transaction (other than the Offer, the Top-Up Option, the Merger and the other transactions contemplated by this Agreement) or (vii) resolve to, publicly propose, agree or publicly announce an intention to do any of the foregoing. Except and so long as expressly permitted pursuant to Section 7.03(c) and subject to the following sentence, on the Solicitation Period End Date (and thereafter), (x) the Company shall, and shall cause its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives with respect to any Acquisition Proposal and (y) the Company shall promptly request that each such Third Party and its Representatives promptly return or destroy all confidential information theretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information). Notwithstanding the commencement of the obligations under this Section 7.03(b), from and after the Solicitation Period End Date until 11:59 p.m. (New York City time) on the tenth (10th) calendar day following the Solicitation Period End Date (the “Cut-Off Date”), the Company (I) may continue to engage in the activities described in clauses (i) and (ii) of the first sentence of this Section 7.03(b) and (II) is not required to on its behalfcomply with the immediately previous sentence, enter into in each case, with any letter of intentExcluded Party (but only for so long as such Excluded Party remains an Excluded Party); provided, memorandum of understandinghowever, agreement that if the Company Board (or any committee thereof) determines either to make an Adverse Recommendation Change or to terminate this Agreement, in principleeach case, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with Section 7.03(e) in respect of an Acquisition Proposal made by an Excluded Party and the Company delivers the notice contemplated by Section 7.03(e)(iv) in respect of such Acquisition Proposal on or before the Cut-Off Date, then the Cut-Off Date shall be extended (but solely with respect to such Acquisition Proposal (and any amendment, modification or supplement thereto) to 5:00 p.m. (New York City time) on the Business Day following the final four (4) Business Day or two (2) Business Day period, as applicable, contemplated by Section 7.03(e)(iv) and Section 7.03(e)(v) (but only so long as the Company is in compliance with Section 7.03(e)). Promptly after the Solicitation Period End Date (and in any event no later than forty-eight (48) hours following the Solicitation Period End Date), the Company shall provide to Parent the information described in clauses (i) through (iii) of Section 7.03(d) with respect to each Acquisition Proposal submitted by an Excluded Party (including, for the avoidance of doubt, the identities of all identified members of the group that constitutes such Excluded Party).
(c) Notwithstanding anything in this Section 6.12(a7.03 to the contrary, at any time prior to the Offer Closing, in response to a written Acquisition Proposal that is not withdrawn and that did not result from or arise in connection with a breach of Section 7.03(b) and that the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized reputation and the Company’s outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal (a “Qualified Acquisition Proposal”), the Company, directly or indirectly through its Representatives, may (i) engage in negotiations or discussions with such Third Party and its Representatives and/or (ii) furnish to such Third Party or its Representatives information relating to the Company or any of its Subsidiaries, subject and pursuant to an Acceptable Confidentiality Agreement (a copy of which shall promptly be provided to Parent) executed by such third Party prior to receiving such non-public information; provided that (A) the Company shall make available to Parent any material information relating to the Company or its Subsidiaries that is furnished or made available to such Third Party which was not previously made available to Parent at substantially the same time it is made available to such Third Party and shall give Parent and Merger Subsidiary notice confirming that such disclosure is being made pursuant to this Section 7.03(c) and (B) the Company and its Subsidiaries and their respective Representatives shall withhold such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any Veritex Acquisition Proposal. As used pricing or other matters that are highly sensitive or competitive in nature if the exchange of such information (or portions thereof) would, in the Company’s reasonable judgment, reasonably be likely to be harmful to the operation of the Company or its Subsidiaries in any material respect); provided, further, that prior to taking any action described in Section 7.03(c)(i) or Section 7.03(c)(ii) above, (x) the Company Board shall have determined in good faith, after consultation with outside legal counsel, that the failure to take any such actions would be inconsistent with the directors’ fiduciary duties to the holders of Company Stock under Applicable Law and (y) the Company shall deliver to Parent a written notice advising Parent that it will take such action.
(d) From and after the Solicitation Period End Date until the Effective Time or, if earlier, the termination of this AgreementAgreement in accordance with its terms, “Veritex Acquisition Proposal” the Company shall meannotify Parent promptly (and, other than in any event, within forty-eight (48) hours) after receipt by the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, Company (or any third party indication of interest inits Representatives) of any Acquisition Proposal (or any amendment, modification or supplement thereto), which notice shall include (i) any acquisition or purchase, direct or indirect, the identity of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexsuch Third Party, (ii) copies of such Acquisition Proposal (or any tender offer material amendment, modification or exchange offer thatsupplement thereto), if consummatedwritten (including, would result in for the avoidance of doubt, any documents relating to the financing of such third party beneficially owning twenty-five percent Acquisition Proposal (25%) or more portions of any class of equity or voting securities of Veritex or its Subsidiaries whose assetswhich may be redacted to the extent customary and required to comply with confidentiality provisions)), individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or and (iii) reasonably detailed summaries of any oral Acquisition Proposal (or any material amendment, modification or supplement thereto). The Company shall notify Parent promptly (and in any event within forty-eight (48) hours) of any changes to such material terms and conditions and shall keep Parent reasonably informed within forty-eight (48) hours of any material developments regarding the status and terms thereof.
(e) From and after the execution and delivery of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, except as permitted by Section 7.03(f), the Company (and the Company Board or any committee thereof) shall not (x) make an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 11.01(d)(i), unless:
(i) the Company or any of its Representatives receives a mergerQualified Acquisition Proposal that has not been withdrawn;
(ii) the Company Board determines in good faith, consolidationafter consultation with a financial advisor of nationally recognized reputation and the Company’s outside legal counsel, share exchange or other business combinationthat such Qualified Acquisition Proposal constitutes a Superior Proposal;
(iii) the Company Board determines in good faith, reorganization or similar transaction involving Veritex or after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties to the holders of Company Stock under Applicable Law;
(iv) the Company provides a written notice to Parent and Merger Subsidiary that the Company will take such action on the fourth (4th) Business Days following the receipt of such notice setting forth the information described in clauses (i) through (iii) of Section 7.03(d) with respect to such Superior Proposal, and (B) during the four (4) Business Day period following Parent’s and Merger Subsidiary’s receipt of such notice the Company shall, and shall cause its Subsidiaries whose assetsand Representatives to, individually negotiate in good faith with Parent, Merger Subsidiary and their respective Representatives (to the extent Parent, Merger Subsidiary or their Representatives desire to negotiate) to make adjustments and/or modifications to the terms and conditions of this Agreement, the Financing Commitment Letters and the Guaranty; provided, however, that any material amendment to the financial terms or any other material amendment to any such Superior Proposal shall require a new written notice to be delivered by the Company to Parent and Merger Subsidiary and the Company shall be required to comply again with the requirements of this Section 7.03(e)(iv) (provided, that references to the four (4) Business Day period above shall be deemed to be references to a two (2) Business Day period); and
(v) following such four (4) Business Day period (and any additional two (2) Business Day period), the Company Board again determines in good faith, (A) after consultation with a financial advisor of nationally recognized reputation and the Company’s outside legal counsel, that such Qualified Acquisition Proposal continues to constitute a Superior Proposal (after taking into account and/or giving effect to any adjustments or modifications offered or proposed by Parent, Merger Subsidiary or their Representatives) and (B) after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties to the holders of Company Stock under Applicable Law.
(f) The Company Board may also make an Adverse Recommendation Change at any time prior to the Offer Closing if, but only if, an Intervening Event shall have occurred and be continuing and prior to making such Adverse Recommendation Change:
(i) the Company Board determines in good faith, after consultation with its outside legal counsel, that, as a result of such Intervening Event, the failure to make such Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties to holders of Company Stock under Applicable Law;
(ii) the Company provides a written notice to Parent and Merger Subsidiary that the Company will effect an Adverse Recommendation Change after four (4) Business Days following the receipt of such notice and describing such Intervening Event in reasonable detail;
(iii) during such four (4) Business Day period following Parent’s and Merger Subsidiary’s receipt of such notice, the Company shall, and shall cause its Subsidiaries and Representatives to, negotiate in good faith with Parent, Merger Subsidiary and their Representatives (to the extent Parent, Merger Subsidiary or their Representatives desire to negotiate) to make adjustments and/or modifications to the terms and conditions of this Agreement, the Financing Commitment Letters and the Guaranty; provided, however, that any change in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.Intervening
Appears in 1 contract
Sources: Merger Agreement (Telular Corp)
Acquisition Proposals. (a) Veritex shall Fourth Street agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex Fourth Street receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Fourth Street Shareholder Approval, and Fourth Street’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it Fourth Street may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of Fourth Street concludes in good faith (after receiving and based on the written advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would constitute, or would be more reasonably likely than not to result in in, a violation breach of its fiduciary duties obligations to the Fourth Street Shareholders under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Fourth Street shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and Fourth Street will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will Fourth Street shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. Fourth Street agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by Fourth Street.
(b) Notwithstanding the foregoing, including if Fourth Street’s Board of Directors concludes in good faith (and based upon the written advice of outside legal counsel) that an Acquisition Proposal constitutes a Superior Proposal and that failure to accept such Superior Proposal would constitute, or would be reasonably likely to result in, a breach of its fiduciary obligations to the Fourth Street Shareholders under applicable Laws, the Fourth Street Board of Directors may at any amendments time prior to the Fourth Street Shareholder Approval (i) withdraw or revisions modify (a “Change in Recommendation”) the Fourth Street Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the Fourth Street Board of Directors recommendation for the material terms Fourth Street shareholder approval of this Agreement, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of VeritexFourth Street may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) Fourth Street shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of Fourth Street determines in good faith (after consultation with counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) Fourth Street has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer or exchange offer thatsuch Superior Proposal (including the identity of the Person making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, if consummatedFourth Street has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of the such Superior Proposal, Fourth Street shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and Fourth Street shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. Fourth Street will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex shall NorthStar agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex NorthStar receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the NorthStar Shareholder Approval, and NorthStar’s Board of Directors concludes in good faith (after consultation with its financial advisor and outside legal counsel) that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it NorthStar may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of NorthStar concludes in good faith (after receiving the advice of its outside counsel, and consultation with respect to financial matters, its financial advisorsadvisor and outside legal counsel) that failure to take such actions would constitute, or would be more reasonably likely than not to result in in, a violation breach of its fiduciary duties obligations to the NorthStar Shareholders under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and NorthStar shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and NorthStar will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will NorthStar shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. NorthStar agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by NorthStar.
(b) Notwithstanding the foregoing, including if NorthStar’s Board of Directors concludes in good faith (after consultation with its financial advisor and outside legal counsel) that an Acquisition Proposal constitutes a Superior Proposal and that failure to accept such Superior Proposal would constitute, or would be reasonably likely to result in, a breach of its fiduciary obligations to the NorthStar Shareholders under applicable Laws, the NorthStar Board of Directors may at any amendments time prior to the NorthStar Shareholder Approval (i) withdraw or revisions modify (a “Change in Recommendation”) the NorthStar Directors’ Recommendation or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the NorthStar Board of Directors recommendation for the material terms NorthStar shareholder approval of this Agreement, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of VeritexNorthStar may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) NorthStar shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex material respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of NorthStar determines in good faith (after consultation with counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) NorthStar has given SBC at least four (4) Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer such Superior Proposal (including the identity of the Person making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal, subject to SNB executing any required confidentiality or exchange offer thatnondisclosure agreement; and (C) before effecting such Change in Recommendation, if consummatedNorthStar has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of the such Superior Proposal, NorthStar shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and NorthStar shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. NorthStar will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its commercially reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt approval of this Agreement by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, provided further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its commercially reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one (1) business day) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington Parent reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall (A) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving the Company and (B) use its commercially reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofthereof and, in accordance therewith. During the term of this Agreement, Veritex the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i1) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company, (ii2) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company, or (iii3) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Golden West will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their its Subsidiaries' officers, directors, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, PROVIDED that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex Golden West receives an unsolicited bona fide written Veritex BONA FIDE Acquisition Proposal, it from a Person other than Wachovia or an Other Person (as defined below), after the execution of this Agreement, and the Golden West Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions would result in a violation of the directors' fiduciary duties under applicable law, Golden West may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent discussions; PROVIDED that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and Golden West will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than Huntington Wachovia ("OTHER PERSONS") with respect to any Veritex Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Veritex Golden West will promptly (and in any event within one (1) business day) advise Huntington Wachovia following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Wachovia apprised of any related developments, discussions and negotiations (including the material terms and conditions of the Acquisition Proposal) on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex Promptly following the execution hereof, the Company shall, and shall cause the Company Subsidiaries and its and their respective directors and officers, and shall use reasonable best efforts to cause their respective Representatives to (i) immediately cease and cause to be terminated all existing discussions or negotiations with any Person (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (ii) request the prompt return or destruction of all confidential information previously made available by it or on its behalf to any Person (other than Parent and its Affiliates) who executed a Company NDA. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality agreement to which the Company, any Company Subsidiary or any of their respective controlled Affiliates is a party with any Person (other than Parent and its Affiliates) with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and shall use reasonable best efforts to enforce, to the fullest extent permitted by applicable Law, the provisions of any such agreement, including seeking injunctions to prevent any breaches of any such agreement; provided, however, that, notwithstanding anything to the contrary in this Agreement, the Company shall be entitled to waive any standstill provision included in any such confidentiality agreement or any standstill provision contained in any standstill agreement to which the Company, any Company Subsidiary or any of their respective controlled Affiliates is a party with respect to any Acquisition Proposal or any proposal, inquiry or offer that is reasonably likely to lead to an Acquisition Proposal if the Company Board determines that failure to waive such standstill would constitute a breach of its fiduciary duties under applicable Law.
(b) Subject to the other terms of this Section 5.3, the Company shall not, and shall cause its the Company Subsidiaries and its and their respective directors and officers not to, and shall use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) respective Representatives not to, directly or indirectly, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate the making, submission or announcement of any inquiries or proposals with respect tothe making of any proposal or offer constituting or that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any non-public information regarding any of the Company or any Company Subsidiary to any Person (other than Parent, its Affiliates and Parent’s or Purchaser’s Representatives acting in their capacity as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in discussions or participate in any negotiations with any person concerning Person with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that they currently are not permitted to have discussions), (iv) approve, endorse or recommend any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, (v) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, (vi) enter into any letter of intent or agreement in principle or any Contract with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(c)) or (vii) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal.
(c) Notwithstanding anything to the contrary in this Agreement, if at any time prior to the Acceptance Time, (i) the Company receives, after the date of this Agreement, a bona fide written Acquisition Proposal that was not solicited after the date of this Agreement, (ii) such Acquisition Proposal did not result from a breach of Section 5.3(a) or Section 5.3(b) of this Agreement, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Company Board of Directors concludes determines in good faith (after receiving consultation with outside counsel and a financial advisor, each of nationally recognized reputation) that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (iv) the advice of its Company Board determines in good faith (after consultation with outside counsel, and with respect to financial matters, its financial advisors) that the failure to take such the actions referred to in clause (x) or (y) of this Section 5.3(c) would be more likely than not to result in constitute a violation breach of its fiduciary duties under applicable lawLaw, then, prior to the Acceptance Time, the Company may (x) make available information with respect to the Company and the Company Subsidiaries to the Person (and its or their directors, officers and Representatives and potential financing sources) making such Acquisition Proposal pursuant to an Acceptable Confidentiality Agreement; provided, further, that, that any nonpublic information provided or made available to any Person given such access shall have been previously provided or made available to Parent or shall be provided or made available to Parent prior to or concurrently with providing any nonpublic information permitted the time it is provided or made available to be provided pursuant to such Person, and (y) participate in discussions or negotiations with the foregoing provisoPerson (and its or their directors, Veritex shall have provided officers and Representatives and potential financing sources) making such information to HuntingtonAcquisition Proposal regarding such Acquisition Proposal; provided, however, that the Company and its Subsidiaries shall, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willcause its and their respective directors and officers to, and will shall use its reasonable best efforts to cause its their respective Representatives to, immediately cease and cause to be terminated any activities, discussions activities described in clause (x) or negotiations conducted before the date (y) of this Agreement Section 5.3(c) immediately following the time that the Company Board determines in good faith (after consultation with any person other than Huntington with respect outside counsel and a financial advisor, each of nationally recognized reputation) that the applicable Acquisition Proposal no longer constitutes or would reasonably be expected to any Veritex Acquisition lead to a Superior Proposal. Veritex will The Company shall promptly (and in any event within one thirty-six (136) business dayhours) advise Huntington following Parent of the receipt of any Veritex Acquisition Proposal or any inquiry which could proposal or offer that would reasonably be expected to lead to a Veritex an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, proposal or offer, and the substance thereof (including the material terms and conditions of and thereof) that is made or submitted by any Person prior to the Acceptance Time; provided, however, that the Company shall not be required to provide Parent or Purchaser with the identity of the person making Person submitting such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised , proposal or offer or the details of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject proposal or offer made or submitted pursuant to applicable law and any Company NDA so long as the fiduciary duties of only communications between the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance directors, officers or Representatives and such Person relate to (A) such Person being informed of the Company’s obligations under Section 5.3 and (B) requests that such Person waive any provision of such Company NDA that prohibits the Company from complying with the terms thereofof this Section 5.3(c). During The Company shall keep Parent informed, on a reasonably current basis, of the status of, and any financial or other material changes in, any such Acquisition Proposal, proposal or offer, including furnishing copies of all offer letters, term sheets, written proposals or similar documents, in each case, offering or proposing to effect an Acquisition Proposal, and any draft agreements to effect the applicable Acquisition Proposal, proposal or offer exchanged between the Company and the other party making the Acquisition Proposal, proposal or offer.
(d) Subject to the other terms of this Section 5.3, neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw or qualify (or modify in a manner adverse to Parent) the Company Recommendation, the Company Determination or the approval of this Agreement, Veritex shall notthe Offer or any of the other transactions contemplated hereby or (B) adopt, and shall approve or recommend or publicly propose to adopt, approve or recommend any Acquisition Proposal, (ii) cause its Subsidiaries and its and their Representatives not or permit the Company to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement or other similar agreement with respect to an Acquisition Proposal, other than an Acceptable Confidentiality Agreement in accordance with Section 5.3, (iii) take any action to make the provisions of any Takeover Laws or any restrictive provision of any applicable antitakeover provision in the certificate of incorporation or bylaws of the Company, inapplicable to any transactions contemplated by an Acquisition Proposal (including approving any transaction under the DGCL) or (iv) resolve, agree or propose to take any such actions (each such action set forth in Section 5.3(d)(i) and Section 5.3(d)(ii) being referred to herein as an “Adverse Recommendation Change”), it being understood that the following shall not constitute an Adverse Recommendation Change: (A) any “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act and (B) any communication by the Company that expressly continues to recommend the Offer.
(e) Notwithstanding anything to the contrary in this Agreement, but subject to Section 5.3(f) and Section 5.3(g), at any time prior to the Acceptance Time, if the Company Board determines in good faith (after consultation with outside counsel of nationally recognized reputation) that the failure to do so would constitute a breach of its fiduciary duties under applicable Law, then, prior to the Acceptance Time, the Company Board may (i) make an Adverse Recommendation Change in response to an Intervening Event (other than for an Acquisition Proposal) or (ii) (solely in response to a Superior Proposal received on or after the date hereof that has not been withdrawn or abandoned and that did not result from a breach of Section 5.3(a) or Section 5.3(b) of this Agreement), make an Adverse Recommendation Change and, on or after the Cut-Off Date, terminate this Agreement in order to enter into a definitive agreement in accordance with Section 7.1(d)(iii). Neither the Company Board nor any committee thereof shall make an Adverse Recommendation Change or (solely in response to a Superior Proposal received on or after the date hereof that has not been withdrawn or abandoned and that did not result from a breach of Section 5.3(a) or Section 5.3(b) of this Agreement) terminate this Agreement in accordance with Section 7.1(d)(iii) unless the Company has first complied with the provisions of Section 5.3(f) and, after so complying, the Company Board determines in good faith (after consultation with outside counsel of nationally recognized reputation) that the failure to do so would constitute a breach of its fiduciary duties under applicable Law and, in the case of an Adverse Recommendation Change or termination pursuant to Section 5.3(e)(ii), such Acquisition Proposal continues to constitute a Superior Proposal.
(f) The Company Board shall not take any action set forth in (i) Section 5.3(e)(i) unless the Company has first (A) provided Parent four (4) Business Days’ prior written notice advising Parent it intends to effect an Adverse Recommendation Change which notice specifies, in reasonable detail, the reasons therefor (it being understood that the delivery of such notice shall not itself constitute an Adverse Recommendation Change), and (B) during such four (4) Business Day period, negotiated, and has caused its Representatives to negotiate, in good faith any written proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect an Adverse Recommendation Change and (C) after complying with clauses (A) and (B) of this Section 5.3(f)(i), at the end of such four (4) Business Day period, the Company Board has again reaffirmed the determination described in Section 5.3(e) in light of the revisions to the terms of this Agreement to which Parent has committed in a binding written document or (ii) Section 5.3(e)(ii) unless (A) the Company has first provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person making such Superior Proposal and providing copies of any proposed agreements which are intended to effect such Superior Proposal, and the Company Board has made the determination required under Section 5.3(e) (it being understood that the delivery of such notice shall not itself constitute an Adverse Recommendation Change), (B) the Company has negotiated, and caused the Company and its Representatives to negotiate, during the four (4) Business Day period following Parent’s receipt of the Notice of Superior Proposal (the “Notice Period”), in good faith with Parent any written proposal to amend the terms of this Agreement (to the extent Parent wishes to do so) so that such Acquisition Proposal no longer constitutes a Superior Proposal, and (C) after complying with clauses (A) and (B) of this Section 5.3(f)(ii), the Company Board has again reaffirmed the determination described in Section 5.3(e) in light of the revisions to the terms of this Agreement to which Parent has committed in a binding written document; provided, however, that if any revisions are made to an Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Superior Proposal to Parent and shall again comply with the requirements of this Section 5.3(f)(ii) with respect to such new Notice of Superior Proposal, except that in such a situation, the Notice Period shall be two (2) Business Days (it being understood that if any subsequent material revisions are made to such Acquisition Proposal, the Company shall deliver a new Notice of Superior Proposal to Parent and shall again comply with the requirements of this Section 5.3(f)(ii) with respect to such new Notice of Superior Proposal, except that the Notice Period with respect thereto shall be two (2) Business Days).
(g) The Company agrees that it shall take all actions necessary so that any Adverse Recommendation Change shall not change the approval of this Agreement or any other approval of the Company Board or any committee thereof in any respect that would have the effect of causing any of the Takeover Laws of any state (including Delaware) to be applicable to the transactions contemplated hereby, including the Offer and the Mergers.
(h) Nothing contained in this Section 5.3 shall prohibit the Company Board from taking and disclosing a position contemplated by Item 1012(a) of Regulation M-A, Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act or making any disclosure to its stockholders required pursuant to applicable Law; provided, however, that any such disclosure (other than a confidentiality agreement referred “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be an Adverse Recommendation Change unless the Company Board expressly reaffirms the Company Recommendation and entered into rejects any Acquisition Proposal that has not then been withdrawn within three (3) Business Days after such disclosure; provided, further that neither the Company nor the Company Board (or any committee thereof) shall be permitted to recommend that the stockholders of the Company tender any securities in accordance connection with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, tender or exchange offer other than the transactions contemplated by this Agreement, any offer, inquiry Offer (or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.othe
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zulily, Inc.)
Acquisition Proposals. (a) Veritex shall Except as otherwise provided in this Section 6.5, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company will not, and nor shall cause it authorize or permit any of its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) initiate, solicit or knowingly encourage or facilitate (including by way of providing non-public information) the making of any Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal, or (ii) other than informing Third Parties of the existence of the provisions contained in this Section 6.5, engage in negotiations or substantive discussions with, or furnish any nonpublic information to, any Third Party relating to an Acquisition Proposal or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal; provided, however, that the Company may ascertain facts from the party making such Acquisition Proposal for the sole purpose of the Company Board informing itself about the Acquisition Proposal and the party making it. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately promptly cease and cause to be terminated any all existing activities, discussions or negotiations with any Person conducted before heretofore with respect to any Acquisition Proposal, or any inquiry or proposal that may reasonably be expected to lead to an Acquisition Proposal, promptly request the prompt return or destruction of all confidential information previously furnished and promptly terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time on or following the date hereof and prior to the date that the Requisite Shareholder Approval is obtained at the Shareholders’ Meeting, in the event that the Company receives a written Acquisition Proposal, which Acquisition Proposal was made after the date of this Agreement and did not result from a material breach of this Section 6.5, the Company and the Company Board and their Representatives may, subject to compliance with this Section 6.5(b), (A) engage in negotiations or substantive discussions (including, as a part thereof, making counterproposals) with, or (B) furnish any person information and other than Huntington access to, any Third Party making such Acquisition Proposal and its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with respect the Company’s outside legal and financial advisor, and based on information then available, that such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal; provided, that (x) prior to furnishing any Veritex Acquisition Proposal. Veritex will material nonpublic information, the Company receives from such Third Party an executed Acceptable Confidentiality Agreement and (y) any such material nonpublic information so furnished has been previously provided or made available to Parent or is provided or made available (including through posting on the Electronic Data Room) to Parent as promptly as practicable (and in any event within one (124 hours thereafter) business day) advise Huntington following receipt after being so furnished to such Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.5 by any Veritex Acquisition Proposal Representative of the Company or any inquiry which could reasonably be expected of its Affiliates (including the Company Board or any committee thereof) acting in such capacity and at the direction of the Company shall constitute a breach of this Section 6.5 by the Company.
(c) Except as otherwise provided in the last sentence of this Section 6.5(c) or Section 6.5(d), neither the Company Board nor any committee thereof shall (i) (A) withdraw (or qualify or modify in any manner adverse to lead Parent), or publicly propose to a Veritex withdraw (or so qualify or modify), the Company Board Recommendation, or (B) approve, adopt or recommend any Acquisition Proposal, and or propose publicly to approve, adopt or recommend, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, or allow the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into execute any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar definitive agreement (other than a confidentiality agreement referred to and entered into in accordance an Acceptable Confidentiality Agreement) with this Section 6.12(a)) any Third Party constituting or relating to any Veritex Acquisition ProposalProposal (an “Alternative Acquisition Agreement”). As used Notwithstanding anything to the contrary contained in this Agreement, “Veritex at any time prior to the receipt of the Requisite Shareholder Approval, the Company Board may make a Change in Recommendation and terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(c) if the Company Board determines (after consultation with its outside counsel and financial advisor) that the failure to take such action would be inconsistent with the directors’ fiduciary duties to the shareholders of the Company under applicable Law; provided, that the Company has provided Parent four (4) Business Day’s prior written notice advising Parent that it intends to take such action and specifying, in reasonable detail, the reasons for such action; and provided, further, that the Company shall not terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(c) unless the Company pays, or causes to be paid, to Parent the Company Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(d) Without limiting Section 6.5(c), at any time prior to receipt of the Requisite Shareholder Approval, in response to a written Acquisition Proposal made after the date of this Agreement and not arising as a result of a material breach of this Section 6.5 that the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) constitutes a Superior Proposal” , the Company may terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) and, concurrently with such termination, may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall meannot terminate this Agreement pursuant to Section 8.1(c)(ii) and this Section 6.5(d) unless the Company pays, other than or causes to be paid, to Parent the transactions contemplated by Company Termination Fee payable pursuant to Section 8.3(a)(ii) prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to terminate this Agreement pursuant to Section 8.1(c)(ii) and Section 6.5(d), (x) unless the Company shall have provided to Parent four (4) days prior written notice (the “6.5 Notice”) advising Parent that the Company intends to take such action (and (unless a copy of the relevant proposed transaction agreement has been provided to Parent) specifying, in reasonable detail, the material terms and conditions of any offersuch Superior Proposal, inquiry or proposal relating towith all information regarding the identity of the Third Party making any such Superior Proposal redacted) and, or any third party indication if applicable, a copy of interest inthe relevant proposed transaction agreement and all material related documentation, and (y):
(i) any acquisition or purchaseduring such four (4) day period, direct or indirectif requested by Parent, the Company shall have engaged, and shall have caused its Representatives to engage, in good faith negotiations with Parent regarding changes to the terms of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, this Agreement intended to cause such Acquisition Proposal to no longer constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, a Superior Proposal; and
(ii) the Company Board shall have considered any tender offer adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (the “Proposed Changed Terms”) no later than 5:00 p.m., New York City time, on the fourth (4th) day of such four (4) day period and shall have determined in good faith (after consultation with its outside counsel and financial advisor) that the Superior Proposal would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect. (it being understood that any material revision or exchange offer thatamendment to the terms of such Superior Proposal shall require a new 6.5 Notice (but only on two (2) additional occasions) and, if consummated, would result in such third party beneficially owning case, all references to four (4) days in this Section 6.5(e) shall be deemed to be twenty-five percent four (25%24) or more of hours).
(f) The Company shall promptly (and in any class of equity or voting securities of Veritex or its Subsidiaries whose assetsevent within forty-eight (48) hours or, individually or in the aggregate, constitute twenty-five percent (25%) or more event the Company Board determines to take any of the consolidated assets of Veritexactions contemplated by Section 6.5(b) in accordance with the terms thereof, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.substantially concurrent with such
Appears in 1 contract
Sources: Merger Agreement (Multimedia Games Holding Company, Inc.)
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except except, for purposes of this clause (iii), to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a6.13(a); provided, that, for purposes of this clause (iii), prior to the date of receipt of the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition ProposalProposal that did not result from a breach of this Section 6.13(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information or data to Huntington, Parent and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition ProposalProposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent) pursuant to such agreement. Veritex will promptly Promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , copies of any written Acquisition Proposal and written summaries of any material oral communications relating to an Acquisition Proposal), and will keep Huntington reasonably Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement .
(other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)b) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.,
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Each Party agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their its Subsidiaries’ officers, directors, agents, advisors Representatives and representatives (collectively, “Representatives”) Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have have, or engage or participate in in, any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex either Party receives an unsolicited bona fide written Veritex Acquisition ProposalProposal with respect to such Party, it such Party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of such Party concludes in good faith (after receiving the advice of its outside counsel, counsel and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, provided further that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than those of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and Each Party will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington AmSouth or Regions, as the case dictates, with respect to any Veritex Acquisition Proposal. Veritex Each Party will promptly (and in any event within one (1) business day) advise Huntington the other Party following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably the other Party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions . Each of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Parties shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During .
(b) Nothing contained in this Agreement shall prevent a Party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the term of 1934 Act with respect to an Acquisition Proposal; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their directors, officers, directors, agents, advisors employees and representatives (collectively, “Representatives”) Representatives and Affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal that does not violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Holding Shareholder Approval, and Holding’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it the Company may, and may permit its Subsidiaries officers and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of Holding concludes in good faith (after receiving and based upon the written advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, provided further, that, that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and The Company will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person Persons other than Huntington Seacoast with respect to any Veritex Acquisition Proposal. Veritex will The Company shall promptly (and in any event within one (1) business daytwo Business Days) advise Huntington Seacoast following the receipt or notice of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person Person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Seacoast apprised of any related developments, discussions and negotiations on a current basis. The Company agrees that any breach by its Representatives of this Section 4.12 shall be deemed a breach by the Company.
(b) Notwithstanding the foregoing, including if Holding’s Board of Directors concludes in good faith (and based up the written advice of its outside counsel and after consultation with its financial advisor) that an Acquisition Proposal constitutes a Superior Proposal and that failure to accept such Superior Proposal would or would be reasonably likely to result in a violation of its fiduciary obligations to shareholders of Holding under applicable Laws, the Holding Board of Directors may at any amendments time prior to the Holding Shareholder Approval (i) withdraw or revisions modify (a “Change in Recommendation”) the Holding Board of Directors’ recommendation that shareholders of Holding approve this Agreement or make or cause to be made any third party or public communication proposing or announcing an intention to withdraw or modify the material terms Holding Board of Directors recommendation for Holding shareholder approval of this Agreement, and (ii) terminate this Agreement to enter into a definitive agreement with respect to such inquiry or Veritex Acquisition Superior Proposal. Veritex shall use its reasonable best efforts; provided, subject to applicable law and the fiduciary duties of however, that the Board of Directors of VeritexHolding may not make a Change in Recommendation, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of and terminate this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not with respect to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex an Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, Proposal unless (i) Holding shall not have breached this Section 4.12 in any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex respect and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) (A) the Board of Directors of Holding determines in good faith (after consultation with counsel and its financial advisors) that such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by SBC under this Section 4.12(b); (B) Holding has given SBC at least (4) four Business Days’ prior written notice of its intention to take such actions set forth above (which notice shall specify the material terms and conditions of any tender offer or exchange offer thatsuch Superior Proposal (including the identity of the Person making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, if consummatedHolding has negotiated, and has caused its representatives to negotiate in good faith with SBC during such notice period to the extent SBC wishes to negotiate, to enable SBC to revise the terms of this Agreement such that it would result cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of the such Superior Proposal, Holding shall, in each case, be required to deliver to SBC a new written notice, the notice period shall have recommenced and Holding shall be required to comply with its obligations under this Section 4.12 with respect to such third party beneficially owning new written notice. Holding will advise SBC in writing within twenty-five percent four (25%24) or more hours following the receipt of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in Acquisition Proposal and the aggregate, constitute twenty-five percent substance thereof (25%) or more including the identity of the consolidated assets Person making such Acquisition Proposal) and will keep SBC apprised of Veritexany related developments, or discussions and negotiations (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in including the aggregate, constitute twenty-five percent (25%) or more terms and conditions of the consolidated assets of VeritexAcquisition Proposal) on a current basis.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Acquisition Proposals. (a) Veritex shall notWestbank agrees that neither it nor --------------------- any of Westbank's Subsidiaries shall, and that it shall cause its Subsidiaries direct and use its reasonable best efforts in good faith to cause its and their each such Subsidiary's directors, officers, directorsemployees, agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly otherwise facilitate any inquiries or proposals the making of any proposal or offer with respect to an Acquisition Proposal. Westbank further agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts in good faith to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, (ii) directly or indirectly, engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person Person relating to, any Veritex to an Acquisition Proposal, except or otherwise knowingly facilitate any effort or attempt to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, make or is considering making, a Veritex implement an Acquisition Proposal of the existence of the provisions of this Section 6.12(a)Proposal; provided, thathowever, prior that nothing contained in this Agreement shall prevent Westbank or its Board of Directors from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to the receipt of the Requisite Veritex Vote, in the event Veritex receives a request therefor by a Person who has made an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause Proposal if the Westbank Board of Directors receives from the Person so requesting such information an executed confidentiality agreement substantially similar to be furnished nonpublic information or data and participate that entered into with NewAlliance; (C) engaging in such any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of Westbank, if and only to the extent that its that, in each such case referred to in clause (B), (C) or (D) above, (i) the Westbank Board of Directors concludes determines in good faith (after receiving the advice of its consultation with outside legal counsel, and with respect to financial matters, its financial advisors) that failure to take such actions action would be more likely than not required in order for its directors to result in a violation of its comply with their respective fiduciary duties under applicable law; provided, further(ii) the Westbank Board of Directors determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, thatif accepted, prior to or concurrently with providing any nonpublic information permitted is reasonably likely to be provided pursuant to consummated, taking into account all legal, financial and regulatory aspects of the foregoing proviso, Veritex shall have provided such information to Huntingtonproposal and the Person making the proposal, and shall have entered into would, if consummated, result in a confidentiality agreement with such third party on terms no less transaction more favorable to it Westbank's shareholders from a financial point of view than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex willMerger, and (iii) the shareholders of Westbank have not yet approved this Agreement at the Westbank Shareholders Meeting. An Acquisition Proposal which is received and considered by Westbank in compliance with this Section 6.10 and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a "Superior Proposal." Westbank agrees that it will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington parties conducted heretofore with respect to any Veritex Acquisition ProposalProposals. Veritex Westbank agrees that it will promptly (and in any event notify NewAlliance orally within one (1) business dayBusiness Day, with written notice to follow within three (3) advise Huntington following receipt of Business Days thereafter, if any Veritex Acquisition Proposal such inquiries, proposals or offers are received by, any such information is requested from, or any inquiry which could reasonably such discussions or negotiations are sought to be expected to lead to a Veritex Acquisition Proposalinitiated or continued with Westbank or any of its representatives after the date hereof, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry inquiry, proposal or Veritex Acquisition Proposal) offer and the substance thereof and will keep Huntington reasonably apprised NewAlliance informed of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of material developments with respect thereto immediately upon the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and occurrence thereof.
(b) In the fiduciary duties of event that the Board of Directors of VeritexWestbank determines in good faith, after consultation with its financial advisor and upon advice from outside counsel, that it desires to enforce any existing confidentiality or standstill agreements to which accept a Superior Proposal, it or any shall notify NewAlliance in writing of its Subsidiaries is a party intent to terminate this Agreement in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not order to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, an acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance each an "Acquisition Agreement") with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating respect to, or any third party indication of interest inrecommend acceptance of, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more the Superior Proposal. Such notice shall specify all of the consolidated assets terms and conditions of Veritex such Superior Proposal and its Subsidiaries or 25% or more identify the Person making such Superior Proposal. NewAlliance shall have five Business Days to evaluate and respond to Westbank's notice. If NewAlliance delivers to Westbank in writing prior to the expiration of any class the five Business Day period provided above (x) an amendment to Sections 3.1.2, 3.1.3 and 3.1.4 of equity or voting securities this Agreement increasing the Merger Consideration to an amount, and (y) adjusting other material terms and conditions such that they are at least equal to that of Veritex or its Subsidiaries whose assetssuch Superior Proposal (the "NewAlliance Amendment"), individually or as determined by Westbank's Board of Directors in the aggregategood faith exercise of its fiduciary duties after consultation with its financial advisors and counsel, constitute twenty-then Westbank shall accept the NewAlliance Amendment and reject the Superior Proposal. Westbank shall have five percent Business Days to evaluate the NewAlliance Amendment.
(25%c) or more In the event that the Board of Directors of Westbank determines under Section 6.10(b) that the consolidated assets of VeritexNewAlliance Amendment is not at least equal to the Superior Proposal, (ii) any tender offer or exchange offer that, if consummated, would result Westbank can terminate this Agreement in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexorder to execute an Acquisition Agreement with respect to, or (iii) to allow its Board to adopt a mergerresolution recommending acceptance to Westbank's shareholders of, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or the Superior Proposal as provided in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of VeritexSection 11.1.9.
Appears in 1 contract
Sources: Merger Agreement (Westbank Corp)
Acquisition Proposals. (a) Veritex From August 2, 2016 to the date hereof, Seller has, and has caused its Representatives to, cease and cause to be terminated any activities, discussions or negotiations conducted before August 2, 2016 with any person other than Parent with respect to any Acquisition Proposal. From and after the date hereof, Seller shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, to any person relating to, any Veritex Acquisition Proposal.
(b) Notwithstanding the foregoing Section 6.11(a), except to notify a person that has made or, to in the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, event that, after the date hereof and prior to the receipt of the Requisite Veritex Seller Vote, in the event Veritex Seller receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and data, participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its financial advisorsadvisor) that the Acquisition Proposal constitutes, or is reasonably capable of becoming, a Superior Proposal, and that the failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior . Prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing provisothis Section 6.11(b), Veritex Seller shall have provided such information to HuntingtonParent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it Seller than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex Seller.
(c) Seller will promptly (and in any event within one (1) business daydays) advise Huntington following Parent of the receipt of any Veritex Acquisition Proposal or any inquiry which could that would reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within one (1) business days) advise Parent of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to to, or revisions of of, the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Seller shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During .
(d) Notwithstanding anything herein to the term contrary, at any time prior to the receipt of the Requisite Shareholder Vote, Seller may accept or approve a Superior Proposal, cancel or delay the Seller Meeting, change or withdraw its recommendation of this Agreement and the Merger and/or terminate this Agreement; provided, Veritex that the Seller’s Board of Directors may not do any of the foregoing unless:
(i) the Board of Directors of Seller has concluded in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its financial advisor) that the Acquisition Proposal constitutes a Superior Proposal, and that the failure to accept such Superior Proposal would be more likely than not to result in a violation of its fiduciary duties under applicable law, after taking into account any amendment or modification to this Agreement agreed to or proposed by Parent;
(ii) Seller shall have provided prior written notice to Parent at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Parent that the Seller has received a Superior Proposal, and specifying the material terms and conditions of such Superior Proposal (including the identity of the person or group making the Superior Proposal);
(iii) during the Notice Period, Seller shall, and shall cause its financial advisors and outside counsel to, negotiate with Parent in good faith (to the extent Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Seller’s Board of Directors shall have concluded in good faith (after consultation with Seller’s financial advisors and outside legal counsel) that, after considering the results of such negotiations, if any, and after giving effect to any proposals, amendments or modifications offered or agreed to by Parent, if any, that such Acquisition Proposal continues to constitute a Superior Proposal.
(e) Other than pursuant to this Section 6.11, Seller shall not, and shall cause its Subsidiaries and its their respective officers, directors, agents, advisors and their Representatives representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. .
(f) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.:
Appears in 1 contract
Acquisition Proposals. (a) Veritex Powhatan Point shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Powhatan Point Vote, in the event Veritex Powhatan Point receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its financial advisors) that failure such action is reasonably required for the Powhatan Point Board of Directors to take such actions would be more likely than not to result in a violation of comply with its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing provisoprovision, Veritex Powhatan Point shall have provided such information to HuntingtonUnited Bancorp, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexPowhatan Point. Veritex Powhatan Point will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington United Bancorp with respect to any Veritex Acquisition Proposal. Veritex Powhatan Point will promptly (and in any event within one two (12) business daydays) advise Huntington United Bancorp following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington United Bancorp reasonably apprised of any related material developments, discussions and negotiations on a current basis, including any material amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex Powhatan Point shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of VeritexPowhatan Point, to enforce any existing confidentiality or standstill agreements agreement to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During Until the term termination of this Agreement, Veritex Powhatan Point shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement agreement, or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.11(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry offer or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex Powhatan Point and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex Powhatan Point or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexPowhatan Point, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (more than 25%) or more % of any class of equity or voting securities of Veritex Powhatan Point or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexPowhatan Point, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex Powhatan Point or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of VeritexPowhatan Point, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganization.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the shareholders of Company by the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality AgreementAgreement and which is expressly assignable to Purchaser, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexCompany. Veritex Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Purchaser following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) Proposal and a copy thereof if in writing and any related documentation or correspondence), and will keep Huntington reasonably Purchaser apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty▇▇▇-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty▇▇▇▇-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.▇▇▇▇/10/AMERICAS
Appears in 1 contract
Sources: Merger Agreement (First Commonwealth Financial Corp /Pa/)
Acquisition Proposals. (a) Veritex First Century will, and will cause each of its Subsidiaries to, and its and their respective officers, directors, and representatives (including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) to, immediately cease and cause to be terminated any existing solicitations, discussions, or negotiations with any Person concerning an Acquisition Proposal (as defined in Section 5.06(e)). During the period from the date of this Agreement through the Effective Time, First Century shall not terminate, amend, modify, or waive any material provision of any confidentiality or similar agreement to which First Century or any of its Subsidiaries is a party (other than any involving First Internet).
(b) Except as permitted in this Section 5.06, First Century shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and any of their respective directors, officers, directors, agents, advisors and representatives (collectively, “Representatives”including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) not to, directly or indirectly, (i) solicit, initiate, solicit, or knowingly encourage or knowingly facilitate, or take any other action designed to, or that could reasonably be expected to, facilitate (including by way of furnishing non-public information) any inquiries or proposals with respect toto an Acquisition Proposal, or (ii) engage or participate in any negotiations discussions with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Person regarding an Acquisition Proposal, except in each case as to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal such Person of the existence of the provisions of this Section 6.12(a)5.06; provided, however, that, at any time prior to obtaining the receipt approval of the Requisite Veritex VoteMerger by First Century’s shareholders, in the event Veritex if First Century receives an unsolicited a bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to Superior Proposal that the extent that its First Century Board of Directors concludes determines in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such the foregoing actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; providedLaw, furtherFirst Century may furnish, thator cause to be furnished, non-public information with respect to First Century and its Subsidiaries to the Person who made such Superior Proposal and may participate in discussions and negotiations regarding such proposal if prior to or concurrently with providing any nonpublic information permitted taking such action, First Century has used its commercially reasonable efforts to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered enter into a confidentiality agreement with respect to such third party Superior Proposal on terms no less favorable to it First Century than the Confidentiality Agreement, which confidentiality agreement between First Century and First Internet and that contains a standstill agreement on customary terms. Without limiting the foregoing, it is agreed that any violation of the restrictions contained in the first sentence of this Section 5.06(b) by any representative (including J▇▇▇▇▇ M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC) of First Century or its Subsidiaries shall not provide be a breach of this Section 5.06 by First Century.
(c) Neither the First Century Board nor any committee thereof shall (or shall agree or resolve to) (i) fail to make, withdraw, or modify in a manner adverse to First Internet or propose to withdraw or modify in a manner adverse to First Internet (or take any action inconsistent with) the recommendation by the First Century Board or any such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date committee of this Agreement with any person other than Huntington with respect or the Merger, or approve or recommend, or propose to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt recommend, the approval or recommendation of any Veritex Acquisition Proposal or (any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry foregoing being referred to herein as an “Adverse Recommendation Change”), or Veritex Acquisition Proposal(ii) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments cause or permit First Century or First Century Bank to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, option agreement, joint venture agreement, partnership agreement, or other similar agreement (each, an “Acquisition Agreement”) constituting or related to, or which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.06(b)). Notwithstanding the foregoing, at any time prior to the special meeting of First Century’s shareholders to approve the Merger, the First Century Board may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the First Century Board determines in good faith, after consultation with its outside legal counsel and entered into financial advisors, that the failure to do so would be reasonably likely to result in accordance with this Section 6.12(a)a breach of its fiduciary duties to the shareholders of First Century under applicable Law, and provided, further, that the First Century Board may not effect such an Adverse Recommendation Change unless (A) the First Century Board shall have first provided prior written notice to First Internet (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall, in the case of a Superior Proposal, attach the most current version of any proposed written agreement or letter of intent relating to the transaction that constitutes such Superior Proposal (it being understood that any Veritex Acquisition Proposalamendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new ten (10) business day period) and (B) First Internet does not make, within ten (10) business days after receipt of such notice, a proposal that would, in the reasonable good faith judgment of the First Century Board (after consultation with financial advisors and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that the Adverse Recommendation Change is no longer required to comply with the First Century Board’s fiduciary duties to the shareholders of First Century under applicable Law. As used First Century agrees that, during the ten (10) business day period prior to its effecting an Adverse Recommendation Change, First Century and its officers, directors, and representatives shall negotiate in this Agreementgood faith with First Internet and its officers, “Veritex Acquisition Proposal” shall meandirectors, other than and representatives regarding any revisions to the terms of the transactions contemplated by this AgreementAgreement proposed by First Internet.
(d) In addition to the obligations of First Century set forth in paragraphs (a), (b) and (c) of this Section 5.06, First Century shall as promptly as possible, and in any event within two (2) business days after First Century first obtains knowledge of the receipt thereof, advise First Internet orally and in writing of (i) any Acquisition Proposal or any request for information that First Century reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry First Century reasonably believes could lead to any Acquisition Proposal, along with the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal or request or inquiry. In connection with any such Acquisition Proposal, request, or inquiry, if there occurs or is presented to First Century any offer, inquiry material change, modification, or proposal development to a previously made offer, letter of intent, or any other material development, First Century (or its outside counsel) shall (A) advise and confer with First Internet (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto, and the material terms (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry, and (B) promptly upon receipt or delivery thereof provide First Internet with true, correct, and complete copies of any document or communication related thereto.
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean (i) any inquiry, proposal, or offer from any Person or group of Persons (other than as contemplated by this Agreement) relating to, or that could reasonably be expected to lead to, any third party indication of interest in, (i) any direct or indirect acquisition or purchase, direct in one transaction or indirecta series of transactions, of twenty-five percent (25%A) assets or businesses that constitute 20% or more of the consolidated revenues, net income, or assets of Veritex First Century and its Subsidiaries Subsidiaries, taken as a whole, or 25(B) 20% or more of any class of equity or voting securities of Veritex First Century or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in such third party any Person beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex First Century or any of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or Subsidiaries; (iii) a any merger, consolidation, share exchange or other business combination, reorganization recapitalization, liquidation, dissolution, joint venture, binding share exchange, or similar transaction involving Veritex First Century, First Century Bank, or any of its other Subsidiaries whose assets, individually pursuant to which any Person or in the aggregate, constitute twenty-five percent (25%) shareholders of any Person would own 20% or more of any class of equity securities of First Century, First Century Bank, or any of First Century’s other Subsidiaries or of any resulting parent company of First Century or First Century Bank; or (iv) any other transaction the consolidated assets consummation of Veritexwhich could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to dilute materially the benefits to First Internet of the transactions contemplated hereby, other than the transactions contemplated hereby. For purposes of this Section 5.06, a “Person” shall include a natural person, or any legal, commercial, or Governmental Authority, including, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
Appears in 1 contract
Acquisition Proposals. (a) Veritex EML shall not, and nor shall cause its EML permit any of the EML Subsidiaries and use its reasonable best efforts to cause its and their officersto, directorsnor shall EML authorize or permit any officer, agentsdirector or employee of, advisors and representatives or any investment banker, attorney, accountant or other advisor or representative (collectively, “Representatives”) not of, EML or any of the EML Subsidiaries to, directly or indirectly, (ia) initiate, solicit, knowingly initiate or encourage or knowingly facilitate the submission of any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning EML Acquisition Proposal or (iiib) provide any confidential or nonpublic information or data toenter into, or have continue or participate in any discussions withor negotiations regarding, or furnish to any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries information with respect to, or is considering makingagree to or endorse, a Veritex or take any other action to facilitate any EML Acquisition Proposal or any inquiries or the making of the existence of the provisions of this Section 6.12(a)any proposal that constitutes, or may reasonably be expected to lead to, any EML Acquisition Proposal; provided, thathowever, that nothing contained in this Section 6.2 shall prohibit the Board of Directors of EML from, at any time prior to the receipt obtaining approval of the Requisite Veritex VoteConversion and this Agreement by EML’s Members, in the event Veritex receives furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written Veritex EML Acquisition ProposalProposal if, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to (A) the extent that its Board of Directors concludes of EML received the EML Acquisition Proposal following the date on which the Contemplated Transactions are publicly announced, (B) the Board of Directors of EML determines in good faith (faith, after receiving the advice of its consultation with outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions do so would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; providedApplicable Law, further, that, and (C) prior to or concurrently with providing any nonpublic information permitted taking such action, EML (x) provides reasonable notice to be provided pursuant EHC to the foregoing proviso, Veritex shall have provided effect that it is taking such information to Huntingtonaction, and shall have entered into a (y) receives from such person or entity an executed confidentiality agreement with such third party on having terms no less favorable (in the aggregate and except as to it standstill provisions) to EML than the terms of the Confidentiality AgreementAgreement dated August 23, which confidentiality agreement 2004, between EML and EHC. Notwithstanding anything in this Agreement to the contrary, EML shall not provide such person with as promptly as practicable advise EHC orally and in writing of the receipt by it (or any exclusive right of the other entities or persons referred to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before above) after the date hereof of this Agreement with any person other than Huntington with respect to any Veritex EML Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal , or any inquiry which could reasonably be expected to lead to a Veritex any EML Acquisition Proposal, and the substance thereof (including the material terms and conditions of such EML Acquisition Proposal or inquiry, and the identity of the person making any such inquiry EML Acquisition Proposal or Veritex Acquisition Proposal) and inquiry. EML will keep Huntington reasonably apprised EHC fully informed of the status and details of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex EML Acquisition Proposal. Veritex shall use its reasonable best effortsThe term “EML Acquisition Proposal” as used herein means any offer or proposal (i) for a merger, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality consolidation or standstill agreements to which it other business combination involving EML or any of its Subsidiaries is the EML Subsidiaries, (ii) to acquire in any manner a party in accordance substantial equity interest in, or a substantial portion of the business or assets of, EML or any of the EML Subsidiaries, (iii) with respect to any recapitalization or restructuring of EML or any of the terms thereofEML Subsidiaries, or (iv) with respect to any other transaction similar to any of the foregoing with respect to EML or any of the EML Subsidiaries, other than the Merger contemplated by this Agreement. During Immediately after the term execution and delivery of this Agreement, Veritex shall notEML will cease and terminate any existing activities, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into discussions or negotiations with any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance parties conducted heretofore with this Section 6.12(a)) relating respect to any Veritex possible EML Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Eastern Insurance Holdings, Inc.)
Acquisition Proposals. (a) Veritex shall notNotwithstanding anything contained in this Agreement to the contrary, and shall cause its Subsidiaries and use its reasonable best efforts prior to cause its and their officersobtaining the Required Tilray Stockholder Vote, directorsin response to a bona fide Acquisition Proposal by any Person, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, Tilray may: (i) initiate, solicit, knowingly encourage provide information in response to a request therefor (including nonpublic information regarding Tilray or knowingly facilitate any inquiries or proposals with respect to, of its Subsidiaries) to the Person who made such Acquisition Proposal and (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, or negotiations with any person relating to, any Veritex such Person regarding such Acquisition Proposal, except to notify a person that has made orin each case, to the knowledge of Veritexif, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, thatand only if, prior to taking any action described in clauses (i) or (ii) above, the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Tilray Board of Directors concludes determines in good faith (after receiving the advice of consultation with its outside counsellegal counsel that, (x) based on the information then available and after consultation with respect to financial matters, its financial advisors) that failure to take advisor, such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal either constitutes a Superior Offer or any inquiry which could reasonably be expected to lead result in a Superior Offer and (y) that the failure to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making take such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and action could be inconsistent with the fiduciary duties of the Tilray Board to the stockholders of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Tilray under applicable Law.
(b) If Tilray or any Representative of its Subsidiaries is a party Tilray receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then Tilray shall promptly (and in accordance with no event later than twenty-four (24) hours after Tilray becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Privateer orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the material terms thereof). During Tilray shall keep Privateer reasonably informed with respect to the term of this Agreement, Veritex shall not, status and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more material terms of any class of equity such Acquisition Proposal or voting securities of Veritex Acquisition Inquiry and any material modification or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritexproposed material modification thereto.
Appears in 1 contract
Sources: Merger Agreement (Tilray, Inc.)
Acquisition Proposals. (a) Veritex shall SouthTrust will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their its Subsidiaries' officers, directors, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to or waive any provision of or amend the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal terms of the existence SouthTrust Rights Agreement, in respect of the provisions of this Section 6.12(a)an Acquisition Proposal; provided, provided that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex SouthTrust receives an unsolicited bona fide written Veritex Acquisition Proposal, it including from an Other Person (as defined below) after the execution of this Agreement, and the SouthTrust Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal, SouthTrust may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the SouthTrust Board of Directors concludes in good faith (after receiving and based on the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, provided that prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with Agreement (without regard to any exclusive right to negotiate with Veritexmodification thereof pursuant hereto). Veritex will, and SouthTrust will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than Huntington Wachovia ("Other Persons") with respect to any Veritex Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Veritex SouthTrust will promptly (and in any event within one (1) business day) advise Huntington Wachovia following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Wachovia apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis, including any amendments .
(b) Nothing contained in this Agreement shall prevent SouthTrust or the SouthTrust Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to or revisions of the material terms of such inquiry or Veritex an Acquisition Proposal. Veritex shall use its reasonable best efforts, subject provided that such Rules will in no way eliminate or modify the effect that any action pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of such Rules would otherwise have under this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Sources: Merger Agreement (Southtrust Corp)
Acquisition Proposals. (a) Veritex TCF shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex TCF Acquisition Proposal, except to notify a person that has made or, to the knowledge of VeritexTCF, is making any inquiries with respect to, or is considering making, a Veritex TCF Acquisition Proposal of the existence of the provisions of this Section 6.12(a6.13(a); provided, that, prior to the receipt of the Requisite Veritex TCF Vote, in the event Veritex TCF receives an unsolicited bona fide written Veritex TCF Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex TCF shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexTCF. Veritex TCF will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex TCF Acquisition Proposal. Veritex TCF will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex TCF Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex TCF Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex TCF Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex TCF Acquisition Proposal. Veritex TCF shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of VeritexTCF, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex TCF shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.13(a)) relating to any Veritex TCF Acquisition Proposal. As used in this Agreement, “Veritex TCF Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex TCF and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of VeritexTCF, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of VeritexTCF, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex TCF or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of VeritexTCF.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall Golden West will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their its Subsidiaries’ officers, directors, agents, advisors and representatives (collectively, “Representatives”) affiliates not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) or engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, provided that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex Golden West receives an unsolicited bona fide written Veritex Acquisition Proposal, it from a Person other than Wachovia or an Other Person (as defined below), after the execution of this Agreement, and the Golden West Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions would result in a violation of the directors’ fiduciary duties under applicable law, Golden West may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent discussions; provided that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and Golden West will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person persons other than Huntington Wachovia (“Other Persons”) with respect to any Veritex Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Veritex Golden West will promptly (and in any event within one (1) business day) advise Huntington Wachovia following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably Wachovia apprised of any related developments, discussions and negotiations (including the material terms and conditions of the Acquisition Proposal) on a current basis, including any amendments .
(b) Nothing contained in this Agreement shall prevent Golden West or the Golden West Board from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to or revisions of the material terms of such inquiry or Veritex an Acquisition Proposal. Veritex shall use its reasonable best efforts, subject provided that such Rules will in no way eliminate or modify the effect that any action pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of such Rules would otherwise have under this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.
Appears in 1 contract
Sources: Merger Agreement (Wachovia Corp New)
Acquisition Proposals. (a) Veritex shall MainSource agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a such person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the shareholders of MainSource by the Requisite Veritex MainSource Vote, in the event Veritex MainSource receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more reasonably likely than not to result in a violation of its fiduciary duties under applicable law; law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and MainSource shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality AgreementAgreement and which is expressly assignable to First Financial, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with VeritexMainSource. Veritex MainSource will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington First Financial with respect to any Veritex Acquisition Proposal. Veritex MainSource will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington First Financial following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) Proposal and a copy thereof if in writing and any related documentation or correspondence), and will keep Huntington reasonably First Financial apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex MainSource shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) 20% or more of the consolidated assets of Veritex MainSource and its Subsidiaries or 2520% or more of any class of equity or voting securities of Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource, (ii) any tender offer TABLE OF CONTENTS (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) 20% or more of any class of equity or voting securities of Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex MainSource or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more than 20% of the consolidated assets of VeritexMainSource.
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) Veritex shall notThe Bancshares Parties shall, and shall cause its Subsidiaries direct and use its their reasonable best efforts to cause its their Subsidiaries and their officersand their Subsidiaries’ Affiliates, directors, officers, employees, agents, advisors and representatives (collectivelyincluding without limitation any investment banker, “Representatives”) not tofinancial advisor, directly or indirectlyattorney, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data toaccountant, or have other representative retained by the Bancshares Parties or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its their Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions discussions, or negotiations conducted before with any Person other than SmartFinancial and SmartBank with respect to the possibility, consideration, or consummation of any Acquisition Proposal, and will use their reasonable best efforts to enforce, and will direct and use their reasonable best efforts to cause their Subsidiaries to use their reasonable best efforts to enforce, any confidentiality, nondisclosure, or similar agreement relating to any Acquisition Proposal, including by requesting any other party or parties thereto to promptly return or destroy any confidential information previously furnished by or on behalf of the Bancshares Parties or any of their Subsidiaries thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction.
(b) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Bancshares Parties shall not, and shall direct and cause their Subsidiaries and their and their Subsidiaries’ Affiliates, directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by the Bancshares Parties or any of their Subsidiaries) not to, directly or indirectly through another Person, (i) solicit, initiate, or encourage (including by way of furnishing information or assistance), or take any other action to facilitate or that could result in, any inquiries or discussions regarding, or the making of any proposal or offer that constitutes or could be expected to lead to, an Acquisition Proposal; (ii) provide any non-public information or data regarding the Bancshares Parties or any of their Subsidiaries to any Person other than SmartFinancial and SmartBank relating to or in connection with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which or indication of interest that could reasonably be expected to lead to a Veritex an Acquisition Proposal; (iii) continue or participate in any discussions or negotiations, or otherwise communicate in any way with any Person other than SmartFinancial and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex SmartBank, regarding any Acquisition Proposal; (iv) and will keep Huntington reasonably apprised of any related developmentsapprove, discussions and negotiations on a current basisendorse, including any amendments to or revisions of the material terms of such inquiry recommend, or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalfexecute, enter into into, or consummate, any indication of interest, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) Contract relating to any Veritex Acquisition Proposal. As used in this AgreementProposal or requiring the Bancshares Parties to abandon, “Veritex Acquisition Proposal” shall meanterminate, other than or fail to consummate the transactions contemplated by this Agreement, or propose to do any offerof the foregoing; or (v) make or authorize any statement, inquiry recommendation, or proposal relating tosolicitation in support of any Acquisition Proposal; provided, however, that prior to the date of the Bancshares Meeting, if the Bancshares board of directors determines in good faith, after consultation with its outside legal and financial advisors, that the failure to do so would cause the Bancshares board of directors to breach its fiduciary duties under applicable Law, the Bancshares Parties may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 7.1 that the Bancshares board of directors determines in good faith constitutes a Superior Proposal, and subject to providing 48 hours prior written notice of their decision to take such action to SmartFinancial and identifying the Person making the Superior Proposal and all of the material terms and conditions of such Superior Proposal and compliance with Section 7.1(c), (A) furnish information with respect to the Bancshares Parties and their Subsidiaries to any Person making such Superior Proposal pursuant to a customary confidentiality agreement on terms no more favorable to such Person than the terms contained in the Confidentiality Agreement (which confidentiality agreement shall not provide such Person the exclusive right to negotiate with the Bancshares Parties) and (B) participate in discussions or negotiations with such Person regarding such Superior Proposal.
(c) In addition to the obligations of the Bancshares Parties set forth above, the Bancshares Parties shall promptly (within not more than 24 hours) advise SmartFinancial orally and in writing of their receipt of any Acquisition Proposal, or any request for information or inquiry which could be expected to lead to an Acquisition Proposal, and shall keep SmartFinancial informed, on a current basis, of the continuing status thereof, including the terms and conditions thereof and any changes thereto, and shall provide to SmartFinancial any written materials received by the Bancshares Parties or any of their Subsidiaries in connection therewith. Additionally, the Bancshares Parties shall contemporaneously provide or make available to SmartFinancial all materials provided or made available to any third party indication pursuant to this Section 7.1 which have not been previously provided or made available to SmartFinancial.
(d) For the avoidance of interest indoubt, the Bancshares Parties expressly agree that any breach or violation of any provision of this Section 7.1 by any of their Subsidiaries or by any of their or their Subsidiaries’ Affiliates, directors, officers, employees, agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by such Party or any of its Subsidiaries) shall be deemed a breach or violation of this Section 7.1 by the Bancshares Parties.
(e) The Bancshares Parties agree that irreparable damage would occur in the event any of the provisions of this Section 7.1 are breached or violated. Accordingly, it is agreed that SmartFinancial shall be entitled to an injunction or injunctions to prevent breaches or violations of this Section 7.1 and to enforce specifically the terms and provisions of this Section 7.1 in any state or federal court having jurisdiction, this being in addition to any other remedy or relief to which SmartFinancial may be entitled at law or in equity.
(f) Nothing contained in this Section 7.1 shall prevent Bancshares or the Bank or their respective boards of directors from (i) any acquisition taking the actions permitted by Section 7.7(b) of this Agreement or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) informing any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more Person who submits an unsolicited Acquisition Proposal of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritextheir obligations pursuant to this Section 7.1.
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall The Company agrees that it will not, and shall will cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt adoption of this Agreement by the stockholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, Proposal after the date of this Agreement and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information to Huntington, Purchaser and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Purchaser in writing following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of (including a copy of the most recent proposed acquisition agreement, if any), and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington Purchaser reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law law, to, within ten (10) business days after the date hereof, request and confirm the fiduciary duties return or destruction of the Board of Directors of Veritex, any confidential information provided to enforce any person (other than Purchaser and its affiliates and its and their Representatives) pursuant to any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal. Unless this Agreement is contemporaneously terminated in accordance with its terms, the terms thereof. During the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement or other similar definitive transaction agreement in respect of an Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a6.10(a)) relating to any Veritex Acquisition Proposal). As used in this Agreement, “Veritex "Acquisition Proposal” " shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (more than 25%) or more % of the consolidated assets of Veritexthe Company. As used in this Agreement, "Superior Proposal" means a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith to be more favorable from a financial point of view to the Company's stockholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisor (who shall be a nationally recognized investment banking firm), (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided that for purposes of the definition of "Superior Proposal," the references to "25%" in the definition of Acquisition Proposal shall be deemed to be references to "a majority."
(b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the Company's stockholders; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Suffolk Bancorp)
Acquisition Proposals. (a) Veritex Notwithstanding anything to the contrary contained in this Agreement, during the period commencing on the date of this Agreement and continuing until 12:01 a.m. (New York City time) on the thirty-first (31st) day following the date hereof (the “No-Shop Period Start Date”), the Company and the Company Subsidiaries and their respective Representatives shall have the right to, directly or indirectly, (i) solicit, initiate, facilitate or encourage the making of any Alternative Transaction Proposal, including by way of furnishing information with respect to the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an executed Acceptable Confidentiality Agreement; provided, that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable after such information has been furnished to such Person (or its Representatives), and (ii) participate in discussions or negotiations with respect to any Alternative Transaction Proposal or otherwise cooperate in connection with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Alternative Transaction Proposal.
(b) From and after the No-Shop Period Start Date until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with its terms, except as otherwise provided in, and subject to the terms and conditions of, this Section 8.4, the Company shall not, and shall cause each Company Subsidiary not to, and will use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage, facilitate or assist the making of any Alternative Transaction Proposal or any inquiries, offers or proposals that could reasonably be expected to lead to an Alternative Transaction Proposal or the consummation thereof or (ii) other than with Parent, Merger Sub or their respective Affiliates and Representatives and other than to inform any Person that the Company is subject to the provisions of this Section 8.4, (A) enter into, continue, knowingly encourage or otherwise participate or engage in any discussions or negotiations regarding, (B) provide or afford access to its properties, assets, books and records or personnel or (C) furnish to any Person any non-public information, in each case of clauses (A) through (C), in connection with, or relating to, any Alternative Transaction Proposal or the making thereof or any inquiry, offer or proposal with respect thereto, (iii) execute or enter into any Alternative Transaction Agreement, (iv) fail to enforce or grant any waiver or release under any “standstill” or similar agreement with respect to any class of securities of the Company or any of the Company Subsidiaries to the extent that the applicable provision of any such agreement prohibits or purports to prohibit a confidential proposal being made to the Company Board, unless the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with the directors’ fiduciary duties under Applicable Law or (v) authorize, agree or commit to do any of the foregoing. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, but subject to the final sentence of this Section 8.4(b), if at any time after the No-Shop Period Start Date and prior to receipt of the Company Stockholder Approval, the Company or any Company Subsidiary receives a written Alternative Transaction Proposal that did not result from a breach of this Section 8.4, the Company and the Company Board may (directly or through their respective Representatives) (A) contact such Person and its advisors for the purpose of clarifying the proposal and any material terms and conditions and likelihood of consummation thereof, so as to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (B) (x) provide and afford access to the properties, assets, books and records and personnel and furnish information with respect to the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement if, and only if, the Company Board determines in good faith after consultation with its legal and financial advisors and based on information then available that such Alternative Transaction Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal; provided, that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable after such information has been furnished to such Person (or its Representatives) and (y) participate in discussions or negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding such Alternative Transaction Proposal. Notwithstanding anything to the contrary contained in this Section 8.4(b), if there is one or more Exempted Persons on the No-Shop Period Start Date, the Company and the Company Subsidiaries and their respective Representatives may continue to engage in the activities described in Section 8.4(a) from and after the No-Shop Period Start Date with respect to any such Exempted Person, including with respect to any amended proposal submitted by any such Exempted Person, until the time that such Exempted Person ceases to be an Exempted Person.
(c) On the No-Shop Period Start Date, except with respect to any Exempted Person, the Company shall immediately cease and cause to be terminated, and shall cause the Company Subsidiaries and use its reasonable best efforts to cause its and their officersRepresentatives to immediately cease and cause to be terminated, directorsany activities, agentssolicitations, advisors discussions or negotiations with any Person and representatives its Affiliates and Representatives (collectivelyother than the parties and their respective Representatives and designees) in connection with or relating to an Alternative Transaction Proposal, “in each case that exists as of the date hereof. The Company also agrees that it will promptly after the No-Shop Period Start Date (and in any event within two (2) Business Days thereof) (i) request each Person (other than Parent, Merger Sub and their respective Representatives and designees) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company to return or destroy all confidential information furnished to such Person or any of its Affiliates or Representatives by or on behalf of the Company or any of the Company Subsidiaries prior to the date hereof and (ii) terminate any access to any data room (electronic or otherwise) previously provided to any such Person, its Affiliates or its or their respective Representatives”; provided, however, that with respect to Exempted Persons, the request for the destruction or return of confidential information shall be made promptly following such time as such Person ceases to be an Exempted Person (and in any event within two (2) not toBusiness Days thereof).
(d) Except as otherwise provided in this Section 8.4, the Company Board (or a committee thereof) shall not, directly or indirectly, (i) initiate, solicit, knowingly encourage (A) withdraw (or knowingly facilitate any inquiries amend or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result modify in a violation manner adverse to Parent or Merger Sub) or publicly propose to withdraw (or amend or modify in a manner adverse to Parent or Merger Sub), the approval, recommendation or declaration of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date advisability of this Agreement with and the transactions contemplated by this Agreement, (B) adopt a formal resolution to recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any person other than Huntington with respect Alternative Transaction Proposal, (C) fail to any Veritex Acquisition Proposal. Veritex will promptly publicly reaffirm the Company Board Recommendation within ten (10) Business Days of the occurrence of a bona fide material event or development following the making of an Alternative Transaction Proposal and after Parent reasonably requests in any event writing (or, if the Company Stockholders’ Meeting is scheduled to be held within ten (10) Business Days, within one (1) business dayBusiness Day, if possible, before the Company Stockholders’ Meeting), (D) advise Huntington following receipt of make any Veritex Acquisition Proposal recommendation in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any inquiry which could reasonably be expected substantially similar communication) or (E) fail to lead include the Company Board Recommendation in the Proxy Statement (any action described in this clause (i) being referred to a Veritex Acquisition Proposalas an “Adverse Recommendation Change”) or (ii) adopt or approve, and or publicly propose to adopt or approve, or cause, authorize or allow the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this AgreementCompany Subsidiary to execute or enter into, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement, joint venture agreement, partnership agreement or other similar agreement (agreement, arrangement or understanding other than a confidentiality agreement referred to and entered into an Acceptable Confidentiality Agreement in accordance with this Section 6.12(a)8.4(b) relating (each, an “Alternative Transaction Agreement”) (A) constituting or that could reasonably be expected to lead to or otherwise relates to any Veritex Acquisition Proposal. As used in this AgreementAlternative Transaction Proposal or (B) requiring it to abandon, “Veritex Acquisition Proposal” shall mean, terminate or fail to consummate the Merger and the other than the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, but subject to the Company’s compliance in all material respects with the other provisions of this Section 8.4, as applicable, at any offertime prior to obtaining the Company Stockholder Approval, inquiry the Company Board may, in response to a Superior Proposal or proposal relating an Intervening Event, make an Adverse Recommendation Change if the Company Board determines, in good faith, after consultation with its legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under Applicable Law.
(e) Without limiting Section 8.4(b), in response to a written Alternative Transaction Proposal that did not result from a breach of this Section 8.4 and that the Company Board determines, in good faith, after consultation with its outside legal and financial advisors, constitutes a Superior Proposal, the Company may terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(e) to, or any third party indication of interest inconcurrently with such termination, enter into an Alternative Transaction Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 10.1(h) and this Section 8.4(e) unless the Company (i) complies with its obligations set forth in Section 8.4(f) and (ii) pays, or causes to be paid, to Parent the Company Termination Fee payable pursuant to Section 10.3(a) prior to or concurrently with such termination.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company Board shall not be entitled to either (x) make an Adverse Recommendation Change pursuant to Section 8.4 or (y) terminate this Agreement pursuant to Section 10.1(h) and Section 8.4(e), unless (i) the Company shall have provided to Parent three (3) Business Days’ prior written notice advising Parent that the Company Board intends to take such action, and (A) if relating to a Superior Proposal, such notice shall contain the material terms and conditions of the Superior Proposal that is the basis of the proposed action of the Company Board, including the identity of the Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) making such Alternative Transaction Proposal and a copy of such Alternative Transaction Proposal or (B) if relating to an Intervening Event, such notice shall contain the material facts and circumstances of such Intervening Event and (ii) (A) during such three (3)-Business Day period, if requested by Parent and so long as Parent continues to negotiate in good faith, the Company shall have, and shall have used reasonable best efforts to cause its Representatives to have, engaged in good faith negotiations with Parent regarding any acquisition amendment to this Agreement or purchaseother agreements contemplated hereby proposed in writing by Parent, direct or indirect(B) the Company Board shall have considered in good faith any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent no later than the third (3rd) Business Day of such three (3)-Business Day period, (C) (1) with respect to a Superior Proposal, the Company Board shall have determined, in good faith, after consultation with outside legal and financial advisors, that the Alternative Transaction Proposal would continue to constitute a Superior Proposal if such adjustments to this Agreement and such other agreements were to be given effect and (2) with respect to an Intervening Event, the Company Board shall have determined in good faith, after consultation with outside legal and financial advisors, that failure to make an Adverse Recommendation Change would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law and (D) in the event of twenty-five percent any change to (25%1) any of the financial terms (including the form, amount and timing of payment of consideration) or more any other material terms of a Superior Proposal, or (2) the consolidated assets facts or circumstances relating to an Intervening Event, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above and a new notice period under clause (i) of Veritex this proviso shall commence (except that the three (3) Business Day notice period referred to in clauses (i) and its Subsidiaries (ii) above shall instead be equal to two (2) Business Days) during which time the Company shall be required to comply with the requirements of this Section 8.4(f) anew with respect to such additional notice, including clauses (i) and (ii) of this Section 8.4(f).
(g) Notwithstanding anything to the contrary contained in this Section 8.4, the Company or 25% the Company Board, directly or more of indirectly through their respective Representatives, shall be permitted to (i) take or disclose any class of equity position or voting securities of Veritex or its Subsidiaries whose assetsdisclose any information, individually in each case, reasonably required under Applicable Law or in compliance with or otherwise complying with Rule 14d-9 or Rule 14e-2 promulgated under the aggregateExchange Act (or any similar communication to the Company’s stockholders) and, constitute twentyto the extent referred to therein, Item 1012(a) of Regulation M-five percent (25%) or more of A promulgated under the consolidated assets of VeritexExchange Act, in each case, with respect to any Alternative Transaction Proposal, (ii) make any tender offer “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%any similar communication to the Company’s stockholders) or more of take a neutral or no position with respect to any class of equity or voting securities of Veritex or its Subsidiaries whose assetsAlternative Transaction Proposal, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) make any other disclosure to the Company’s stockholders that is reasonably required by Applicable Law; provided, however, that any disclosures permitted under this Section 8.4(g) shall not, in and of themselves, constitute an Adverse Recommendation Change or form a merger, consolidation, share exchange or other business combination, reorganization basis for Parent to terminate this Agreement pursuant to Section 10.1(c) and (iv) waive any “standstill” or similar transaction involving Veritex or its Subsidiaries whose assetsprovision in order to permit a Person to make an Alternative Transaction Proposal to the extent permitted by Section 8.4(b)(iv).
(h) No later than two (2) Business Days after the No-Shop Period Start Date, individually or the Company shall notify Parent of the number of Exempted Persons and the material terms and conditions of any Alternative Transaction Proposal received from any Exempted Person (including any changes thereto), which Alternative Transaction Proposal has not been withdrawn. From and after the No-Shop Period Start Date, the Company shall as promptly as reasonably practicable (and in the aggregate, constitute no event later than twenty-five percent four (25%24) hours after receipt) notify Parent in writing of any Alternative Transaction Proposal or more of the consolidated assets of Veritex.b
Appears in 1 contract
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “"Representatives”") not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt approval of this Agreement and the transactions contemplated hereby (including the Merger) by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, after the date of this Agreement and its Board of Directors concludes in good faith (after receiving the advice of its outside counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided such information to Huntington, Purchaser and shall have entered into a confidentiality agreement with such third party on material terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Purchaser following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Purchaser of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritexthe Company, to enforce any existing confidentiality confidentiality, standstill or standstill similar agreements to which it or any of its Subsidiaries is a party relating to an Acquisition Proposal in accordance with its terms. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the terms thereofdate hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. During Unless and until this Agreement shall have been duly terminated in accordance with its terms, the term of this Agreement, Veritex Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, binding acquisition agreement, merger agreement or other similar definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. .
(b) As used in this Agreement, “Veritex "Acquisition Proposal” " shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, except, in each case, any sale of whole loans and securitizations in the ordinary course of business and any bona fide internal reorganizations. "Superior Proposal" shall mean a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith to be more favorable to its shareholders than the Merger and the other transactions contemplated hereby, (i) after receiving the advice of its financial advisors (who shall be a nationally recognized investment banking firm), (ii) after taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of "Superior Proposal," the references to "25%" in the definition of Acquisition Proposal shall be deemed to be references to "a majority."
Appears in 1 contract
Acquisition Proposals. (a) Veritex shall From and after the date hereof, the Company will not, and shall cause will not authorize or permit any of its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives employees or agents (collectively, “its "Representatives”) not to"), directly or indirectly, (i) initiate, to solicit, initiate or knowingly encourage (including by way of furnishing information) or take any other action to facilitate knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex. Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal. Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal proposal which constitutes or any inquiry which could may reasonably be expected to lead to a Veritex an Acquisition Proposal (as defined below) from any person, or engage in any discussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however that notwithstanding any other provision hereof: (a) the Special Committee may at any time prior to the receipt of Company Stockholder Approval, engage in discussions or negotiations with a third party who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the Company or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the substance thereof extent that, (including i) (A) the material terms and conditions of and third party has first made an Acquisition Proposal that is more favorable to the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries Company and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement stockholders (other than a confidentiality agreement referred to COLA and entered into in accordance with this Section 6.12(a)holders of the Excluded Shares) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this AgreementAgreement and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (as determined in good faith in each case by the Special Committee after consultation with its financial advisors) and (B) the Special Committee shall conclude in good faith, any offerafter considering applicable provisions of state law, inquiry on the basis of oral or proposal relating towritten advice of outside counsel (who may be the Company's regularly engaged independent counsel) that such action is necessary for the Special Committee to act in a manner consistent with its fiduciary duties under applicable law and (ii) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company (A) provides three Business Days' prior written notice to COLA to the effect that it is furnishing information to or any entering into discussions or negotiations with such person or entity and (B) receives from such person or entity an executed confidentiality agreement in reasonably customary form; (b) the Special Committee may withdraw or modify its recommendation referred to in Article 6.3 following receipt of a bona fide unsolicited Acquisition Proposal from a third party indication of interest in, if (i) any acquisition the Special Committee, after consultation with and receipt of advice from the Financial Advisor or purchaseanother nationally recognized investment banking firm, direct or indirect, determines in good faith in the exercise of twenty-five percent its fiduciary obligations under applicable law that the Acquisition Proposal is more favorable to the Company and its stockholders (25%) or more other than COLA and holders of the consolidated assets of Veritex Excluded Shares) than the transactions contemplated by this Agreement and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any the Special Committee, after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), determines in good faith that such action is necessary for the Special Committee to comply with its fiduciary obligations under applicable law and/or (c) the Board of Directors, upon the recommendation of the Special Committee, may comply with Rule 14e-2 promulgated under the Exchange Act with regard to a tender offer or exchange offer thator take any other required action (including, if consummatedwithout limitation, would result in the making of such third party beneficially owning twenty-five percent (25%public disclosures as may be necessary or advisable under applicable securities laws) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.and
Appears in 1 contract
Sources: Merger Agreement (Oneil Timothy P)
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries not to, and shall use its commercially reasonable best efforts to cause its and their respective officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Company Vote, in the event Veritex Company receives an unsolicited bona fide written Veritex Acquisition Proposal and the Board of Directors of the Company concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of consultation with its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex the Company shall have provided notice to Parent of its intention to provide such information, and shall contemporaneously provide or make available such information to HuntingtonParent if not previously provided to Parent, and shall have entered into a confidentiality non-disclosure agreement with such third party on terms no less favorable to it than the Confidentiality Non-Disclosure Agreement, which confidentiality non-disclosure agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company, but which non-disclosure agreement shall not be required to include any “standstill” or similar provision. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Parent with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one twenty-four (124) business dayhours) advise Huntington Parent following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance terms thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) ), and will keep Huntington reasonably apprised promptly (and in any event within twenty-four (24) hours) advise Parent of any material related developments, discussions and negotiations on a current prompt basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex The Company shall use within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its reasonable best efforts, subject affiliates) pursuant to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereofnon-disclosure agreement. During the term of this Agreement, Veritex The Company shall not, and shall cause its Subsidiaries not to, and shall cause its and their Representatives not to on its or its Subsidiaries’ behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other similar agreement (other than a confidentiality non-disclosure agreement referred to and entered into in accordance with this Section 6.12(a6.11(a)) relating to any Veritex Acquisition Proposal. Proposal (each an “Acquisition Agreement”).
(b) As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five twenty percent (2520%) or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% twenty percent (20%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five twenty percent (2520%) or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries, or (iii) a merger, consolidation, share exchange or exchange, other business combination, reorganization reorganization, joint venture, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five twenty percent (2520%) or more of the consolidated assets of Veritexthe Company and its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Yodlee Inc)
Acquisition Proposals. (a) Veritex The Company shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect toto any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, to any Veritex Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person or (B) notify a person that has made or, to the knowledge of Veritexthe Company, is making any inquiries with respect to, or is considering making, a Veritex an Acquisition Proposal Proposal, of the existence of the provisions of this Section 6.12(a6.11(a); provided, that, prior to the receipt approval of the Merger by the shareholders of the Company by the Requisite Veritex Company Vote, in the event Veritex the Company receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisorsadvisor) that failure to take such actions would reasonably be more likely than not expected to result in a violation of violate its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritexthe Company. Veritex The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington Purchaser with respect to any Veritex Acquisition Proposal. Veritex The Company will promptly (and in any event within one (1) business day) advise Huntington Purchaser following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) , and copies of any proposed agreements, financing commitments, term sheets or letters of intent related thereto), and will keep Huntington Purchaser reasonably apprised on a current basis of any related developments, discussions and negotiations on a current basisnegotiations, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal. Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal. As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) % or more of the consolidated assets of Veritex the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) % or more of any class of equity or voting securities of Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company, or (iii) a merger, consolidation, share exchange or other exchange, business combination, reorganization reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Veritex the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) % or more of the consolidated assets of Veritexthe Company.
(b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the Company’s shareholders; provided, that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
Appears in 1 contract