Acquisition Proposals. (a) Each party agrees that it will not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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. (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 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 3 contracts
Sources: Merger Agreement, Merger Agreement (Capital One Financial Corp), Merger Agreement (Discover Financial Services)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.138.14(a)) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Pinnacle Vote, in the case or Capital OnePinnacle, or the Requisite Discover Synovus Vote, in the case of DiscoverSynovus, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (provided that no such information or data relates to the other party) and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover Synovus or Capital OnePinnacle, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received or provided in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Pinnacle or Synovus, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 3 contracts
Sources: Merger Agreement (Synovus Financial Corp), Merger Agreement (Pinnacle Financial Partners Inc), Merger Agreement (Synovus Financial Corp)
Acquisition Proposals. (a) Each Except as expressly permitted by this Section 7.07, each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person Person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person Person relating to any Acquisition Proposal (except to notify a Person that has made, or to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 7.07), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.137.07) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover VoteCBC Shareholder Approval, in the case of DiscoverCBC, a or the SCB Shareholder Approval, in the case of SCB, such party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person Person making the Acquisition Proposal if the Board of Directors of such party 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 actions would be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person Person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person Person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries 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 Person other than Discover CBC or Capital OneSCB, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twentyforty-four eight (2448) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the Person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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; provided, that notwithstanding anything to the contrary herein, CBC or SCB may, prior to the receipt of the CBC Shareholder Approval, in the case of CBC, or the SCB Shareholder Approval, in the case of SCB, grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow for a confidential Acquisition Proposal to be made to such party or its Board of Directors so long as such party promptly notifies the other party thereof (including the identity of such counterparty) after granting any such waiver, amendment or release and the Board of Directors of such party determines prior to the grant of such waiver, amendment or release in good faith, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, that the failure to take such action would be reasonably expected to result in a violation of its fiduciary duties under applicable law.
(b) Nothing contained in this Agreement shall prevent a party or its Board of Directors from complying with Rule Rules 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition ProposalProposal or from making any legally required disclosure to such party’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 3 contracts
Sources: Merger Agreement (Southern California Bancorp \ CA), Merger Agreement (California BanCorp), Merger Agreement (Southern California Bancorp \ CA)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.13(a)), (iv) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract), or (ivv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One AUB Vote, in the case or Capital OneAUB, or the Requisite Discover SASR Vote, in the case of DiscoverSASR, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party and entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyparty or otherwise prevent the party from providing any information to the other party in accordance with this Agreement or otherwise comply with its obligations under this Agreement, and provided the other with at least one (1) business day prior notice of taking any such action. Each party will, and will cause its Representatives to, (x) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover SASR or Capital OneAUB, as applicable, with respect to any Acquisition Proposal and (y) request the prompt return or destruction of all confidential information previously furnished to any person (other than the parties hereto and its Representatives) that has made or indicated an intention to make an Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any request for nonpublic information or any other inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party apprised promptly (and in any event within twenty-four (24) hours) of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to AUB or SASR, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, twenty-five percent (25%) or more of any action pursuant to such rules would otherwise have under this Agreementclass of equity or voting securities of a party or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Sandy Spring Bancorp Inc), Merger Agreement (Atlantic Union Bankshares Corp)
Acquisition Proposals. (a) Each party The Company agrees that that, except in the case of any Person identified on Section 6.7 of the Company Disclosure Schedule (a “Disclosed Qualified Bidder”) or as otherwise permitted in this Section 6.7, (i) it and its officers and directors will not, (ii) the Company Subsidiaries and the Company Subsidiaries’ officers and directors will cause each of its Subsidiaries not to not, and will cause (iii) its and their respective officersthe Company Subsidiaries’ investment bankers, directors and employees not tofinancial advisors, and will use its reasonable best efforts to cause its attorneys, accountants, employees, consultants or other agents, advisors and or representatives (collectively, “Representatives”) not towill not, (A) directly or indirectly, (i) initiate, solicit, knowingly cause, encourage or otherwise knowingly facilitate any inquiries or proposals the making, submission or reaffirmation of any proposal or offer with respect to a tender offer or exchange offer, proxy solicitation, merger, reorganization, share exchange, recapitalization, liquidation, dissolution, consolidation, business combination or other similar transaction involving the Company and/or the Company Subsidiaries or any proposal or offer to acquire in any manner an equity or voting interest in the Company, or the assets, securities or other ownership interests of or in the Company or any Company Subsidiary, in each case other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”), or (iiB) directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalor discussions concerning, (iii) or provide access to its properties, books and records or any confidential or nonpublic information or data to, or have or participate in any discussions with any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital Oneto, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and that may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to to, an Acquisition Proposal. The Company will promptly take the steps necessary to inform the Persons set forth in clauses (i), (ii) and (iii) of the foregoing sentence of the obligations undertaken in this Section 6.7, and the substance thereof (including the terms and conditions Company agrees that it will be responsible for any breach of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.Section 6.7
Appears in 2 contracts
Sources: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc)
Acquisition Proposals. (a) Each party Seller agrees that it will not, and will cause each of its Seller Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors and representatives (such individuals with respect to either party, collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with (other than any discussions to clarify the terms and conditions of any Acquisition Proposal) with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, indication of interest, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Seller Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Seller receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11, such party Seller may, and may permit its Seller Subsidiaries and its and its Seller Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party Seller concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its outside financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary the duties of the directors of Seller under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Seller shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partySeller. Each party Seller will, and will cause its Seller Subsidiaries 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 Discover or Capital One, as applicable, Buyer with respect to any Acquisition Proposal. Each party Seller will promptly (within twenty-four (24) hours) advise the other party Buyer following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the general substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposalthereof. Each party Seller shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Seller Subsidiaries is a party in accordance with the terms thereof.
(b) Nothing contained . As used 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 with respect to an Agreement, “Acquisition Proposal; provided, that such rules will in no way eliminate or modify ” means other than the effect that any action pursuant to such rules would otherwise have under transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (A) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of Seller and Seller Subsidiaries or 25% or more of any class of equity or voting securities of Seller or Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of Seller, (B) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of Seller or Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of Seller, or (C) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Seller or Seller Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of Seller.
Appears in 2 contracts
Sources: Merger Agreement (BankFinancial CORP), Merger Agreement (BankFinancial CORP)
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, will cause each nor any of its Subsidiaries not to and will cause its and nor any of their respective officers, directors and employees not toshall, and will that it shall direct and use its reasonable best efforts to cause its agents, advisors and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it) 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 any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors and employees shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or participate otherwise 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) at any time prior, but not after the Company Meeting is convened, 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 on terms not less restrictive to the other party than those contained in the Confidentiality Agreement; (C) engaging in any negotiations or discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement Person who has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives made an unsolicited bona fide written Acquisition Proposal, ; or (D) recommending such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the an Acquisition Proposal to the shareholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the Company Board of Directors of such party 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 such action is, in the absence of the foregoing proscriptions, legally required in order for its directors to take such actions would be more likely than not to result in a violation of its comply with their respective fiduciary duties under applicable law; providedLaw and (ii) in each such case referred to in clause (C) or (D) above, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement the Company Board determines in good faith (after consultation with the person making its financial advisor) that such Acquisition Proposal on terms no less favorable to is a Superior Proposal. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt individuals referred to in the first sentence hereof of the obligations undertaken in this Section 6.06. The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any 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 an Acquisition Proposalinitiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of any proposal or offer and the identity of the person making such inquiry or Acquisition Proposal)thereafter shall keep Parent informed, will provide the other party 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 the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. As used in this Agreement, (i) “Acquisition Proposal. Each party shall use its reasonable best efforts ” means (i) any proposal or offer with respect to enforce any existing confidentiality a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or standstill agreements to which it similar transaction involving the Company or any of its Subsidiaries is a party in accordance with the terms thereof.
and (bii) Nothing contained in this Agreement shall prevent a party any proposal 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.offer to
Appears in 2 contracts
Sources: Merger Agreement (Bank of Marin Bancorp), Merger Agreement (Bank of Marin Bancorp)
Acquisition Proposals. (a) Each party agrees that it will notNo Target Entity shall, will cause and each of its Subsidiaries not to and will Target Entity shall cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, solicitencourage, knowingly encourage facilitate (including by way of providing information) or knowingly facilitate induce any inquiries inquiry, proposal or proposals offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) engage enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any confidential or nonpublic information with any person concerning any respect to or in connection with, an Acquisition Proposal, (iii) provide take any confidential or nonpublic information or data to, or have or participate in other action to facilitate any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, inquiries or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal proposal that constitutes or any inquiry which could may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto (other than any confidentiality agreement required by Section 7.2(b)), (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction (other than any confidentiality agreement required by Section 7.2(b)), or (vi) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Target 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 the board of directors of Target has determined, in its good faith judgment (after consultation with Target’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Target and its Representatives may take any action described in Section 7.2(a)(ii) above to the substance thereof extent that the board of directors of Target has determined, in its good faith judgment (including after consultation with Target’s outside legal counsel), that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that, prior to providing (or causing to be provided) any confidential or nonpublic information or data permitted to be provided pursuant to this sentence, Target has obtained from such Person or “Group” an executed confidentiality agreement containing terms no less favorable to Target than, the terms of the Target Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Target shall advise Buyer in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of and such Acquisition Proposal, request or inquiry, shall promptly provide to Buyer a written summary of the material terms of such Acquisition Proposal, request or inquiry (including the identity of the person Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making such inquiry or Acquisition Proposal), will provide the other party 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 shall keep the other party Buyer promptly apprised of any related developments, discussions and negotiations (including providing Parent with a copy of all material documentation and correspondence relating thereto) on a current basis. Target agrees that it shall simultaneously provide to Buyer any confidential or nonpublic information concerning Target that may be provided (pursuant to Section 7.2(b)) to any other Person or “Group” in connection with any Acquisition Proposal which has not previously been provided to Buyer.
(d) Notwithstanding anything herein to the contrary, including at any amendments time prior to or revisions of the Shareholders’ Meeting, if Target has received a Superior Proposal (after giving effect to the terms of any revised offer by Buyer pursuant to this Section 7.2(d)), the board of directors of Target may, in connection with such inquiry Superior Proposal, make a Change in the Target Recommendation, if and only to the extent that the board of directors of Target has determined in good faith, after consultation with outside counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that the board of directors of Target may not effect a Change in the Target Recommendation unless:
(i) Target shall have received an unsolicited bona fide written Acquisition Proposal and the board of directors of Target shall have concluded in good faith that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to by Buyer;
(ii) Target shall have provided prior written notice to Buyer at least three (3) calendar days in advance (the “Notice Period”) of taking such action, which notice shall advise Buyer that the board of directors of Target has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(iii) during the Notice Period, Target shall, and shall cause its financial advisors and outside counsel to, negotiate with Buyer in good faith (to the extent Buyer desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the board of directors of Target shall have concluded in good faith that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Buyer, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Target shall deliver a new written notice to Buyer and shall comply with the requirements of this Section 7.2(d) with respect to such new written notice, except that the new Notice Period shall be two (2) calendar days. In the event the board of directors of Target does not make the determination referred to in clause (iv) of this paragraph and thereafter seeks to effect a Change in the Target Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Target Recommendation.
(e) Target and its Subsidiaries shall, and shall cause their respective Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. Each party shall use its reasonable best efforts to enforce ; (ii) request the prompt return or destruction of all confidential information previously furnished in connection therewith; and (iii) not terminate, waive, amend, release or modify any existing provision of any confidentiality or standstill agreements agreement relating to any Acquisition Proposal to which it or any of its Subsidiaries Target Entity or Representative is a party in accordance with party, and enforce the terms thereofprovisions of any such agreement.
(bf) Nothing contained in this Agreement shall prevent a party Target or its Board board of Directors directors from issuing as “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 Exchange Act with respect to an Acquisition ProposalProposal or from making any disclosure to Target shareholders if Target’s board of directors (after consultation with outside counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; provided, that such rules Rules will in no way eliminate or modify the effect that any action pursuant to such rules Rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sterling Bancshares Inc), Merger Agreement (Comerica Inc /New/)
Acquisition Proposals. (a) Each party agrees that it will not, will cause each of its Subsidiaries not to Section 5.7.1 From and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior continuing until the earlier to the receipt occur of the Requisite Capital One Votetermination of this Agreement pursuant to Section 7.1 or the Effective Time, in the case Company agrees that it shall not, and shall not authorize or Capital Onepermit any Company Representative to, directly or indirectly, take any action to (A) solicit, initiate or knowingly facilitate or take any action intended to, or the Requisite Discover Votewhich would be reasonably expected to, in the case of Discover, a party receives an unsolicited bona fide written facilitate any Acquisition Proposal, such party may(B) participate in any way in discussions or negotiations with, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives or furnish any non-public information to, furnish any person that has made an Acquisition Proposal, (C) except as expressly permitted by this Agreement, withdraw or cause modify the Company Recommendation in a manner adverse to be furnished confidential Parent, (D) other than the Transactions, approve or nonpublic information or data and participate in such negotiations or discussions with the person making the recommend any Acquisition Proposal if the Board of Directors of such party concludes in good faith Proposal, (after receiving the advice of its outside counsel, and E) enter into any agreement with respect to financial matters, its financial advisors) that failure to take such actions would be more likely any Acquisition Proposal (other than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with a party to whom the person making such Acquisition Proposal on terms no less favorable Company is permitted to it than provide information in accordance with Section 5.7.2), or (F) resolve or agree to do any of the Confidentiality Agreementforegoing actions (any action or failure to act set forth in the foregoing clauses (C), which confidentiality agreement (D), or (F) (to the extent related to the foregoing clauses (C) or (D)), a “Company Change in Recommendation”). The Company shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, all existing negotiations and discussions or negotiations conducted before pending as of the date of this Agreement with any person other than Discover or Capital One, as applicable, hereof with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise .
Section 5.7.2 Notwithstanding the provisions of Section 5.7.1 or any other party following receipt provision of this Agreement, at any time prior to the Company Stockholder Approval, if the Company has received an unsolicited Acquisition Proposal from any person which did not arise from or any inquiry which in connection with a breach of this Section 5.7, (A) the Company and its Representatives may contact such person to clarify the terms and conditions of such proposal, and (B) if the Company Board determines, in good faith (1) after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal is or could reasonably be expected to lead to a Superior Proposal, and (2) after consultation with outside legal counsel that failure to take such action could reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company and its Representatives may furnish non-public information to, and engage in discussions and negotiations with, the person making such Acquisition Proposal and its Representatives; provided that (x) prior to furnishing such non-public information to, or engaging in such discussions or negotiations with, such person or its Representatives, the Company shall first enter into a confidentiality agreement with such person that contains confidentiality undertakings no less favorable to the Company than those contained in the Confidentiality Agreement but that shall not contain any “standstill” period or prohibit the disclosure of the terms of such Acquisition Proposal to Parent or otherwise prohibit the Company from complying with this Section 5.7, and (y) the Company will promptly (and in any event within forty-eight (48) hours) provide to Merger Sub any non-public information concerning the Company provided to such person or its Representatives that was not previously provided to Parent. The Company shall promptly (and in any event within forty-eight (48) hours) notify Merger Sub if the Company or any Company Representative receives an Acquisition Proposal. The written notice shall include the identity of the person making the Acquisition Proposal and a copy of such Acquisition Proposal (or, and if not in writing, a description of the substance thereof (including the material terms and conditions of such Acquisition Proposal). The Company shall keep Parent reasonably informed on a substantially current basis (and in any event no later than forty-eight (48) hours after the occurrence of any material developments) of material developments with respect to any Acquisition Proposal (including the material terms and conditions thereof and of any material modifications thereto). Without limiting the foregoing, the Company shall promptly (and in any event within forty-eight (48) hours) notify Merger Sub if it determines to begin providing such non-public information or engaging in any such discussions or negotiations with respect to an Acquisition Proposal pursuant hereto.
Section 5.7.3 Notwithstanding the provisions of Section 5.7.1 or any other provision of this Agreement, at any time prior to the time of the Company Stockholder Approval, if the Company receives an unsolicited Acquisition Proposal, which did not arise from or in connection with a breach of this Section 5.7, that the Company Board determines, in good faith and after consultation with its independent financial advisor and outside legal counsel, constitutes a Superior Proposal (after giving effect to any adjustments to the terms of this Agreement which may be offered by Parent), the Company Board may effect a Company Change in Recommendation with respect to such Superior Proposal or terminate this Agreement pursuant to Section 7.1.7 and enter into a definitive agreement with respect to such Superior Proposal; provided, that the Company Board may not effect a Company Change in Recommendation or terminate this Agreement pursuant to Section 7.1.7 unless: (A) the Company shall have provided prior written notice (a “Change Notice”) to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which Change Notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the person making such inquiry or Acquisition Superior Proposal), will provide the other party with an unredacted and shall have contemporaneously provided a copy of any proposed definitive agreement(s) with respect to such Acquisition Superior Proposal and any draft agreements, proposals (B) during the Notice Period the Company shall have negotiated in good faith with Parent to amend this Agreement or other materials received in connection to enter into another transaction with any Parent such inquiry or Acquisition Proposal, and will keep that the other party apprised offer that was determined to constitute a Superior Offer no longer constitutes a Superior Offer. In the event of any related developments, discussions and negotiations on a current basis, including any amendments material revisions to or revisions of the terms of such inquiry or Acquisition Proposal. Each party Proposal after the start of the Notice Period, the Company shall use its reasonable best efforts be required to enforce any existing confidentiality or standstill agreements deliver a new written Change Notice to which it Parent and to comply with the requirements of this Section 5.7.3 with respect to such new written Change Notice, and the Notice Period shall be deemed to have re-commenced on the date of such new Change Notice, except that the Notice Period shall be reduced to two (2) Business Days.
Section 5.7.4 Notwithstanding the provisions of Section 5.7.1 or any other provision of its Subsidiaries is this Agreement, in circumstances other than as provided in Section 5.7.3, at any time prior to the time of the Company Stockholder Approval, the Company Board may effect a party Company Change in accordance Recommendation if the Company Board determines in good faith, after consultation with outside counsel (who shall have consulted in good faith with Parent’s outside counsel), that as a result of facts or circumstances arising after the date of this Agreement, failure to do so would be inconsistent with the terms thereofCompany Board’s fiduciary obligations under applicable Law.
(b) Section 5.7.5 Nothing contained in this Agreement Section 5.7 shall prevent prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer or exchange offer by a third party or its Board of Directors from complying with Rule pursuant to Rules 14d-9 and Rule 14e-2 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders), or from making disclosure to the Company’s stockholders if the Company Board determines in good faith, after consultation with respect to an Acquisition Proposal; providedoutside counsel, that such rules will in no way eliminate disclosure is required under applicable Law, or modify from making any “stop-look-and-listen” communication to the effect that any action stockholders of the Company pursuant to such rules would otherwise have under this AgreementRule 14d-9(f) and the Exchange Act (or any similar communication to stockholders).
Appears in 2 contracts
Sources: Merger Agreement (Pernix Therapeutics Holdings, Inc.), Merger Agreement (Somaxon Pharmaceuticals, Inc.)
Acquisition Proposals. (a) Each party The Company agrees that it will not, will cause each of its Subsidiaries not to and will cause its Subsidiaries and its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning 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 any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to Parent, Parent Bank and entered into their Representatives in accordance with this Section 6.13their capacity as such) in connection with or relating to any Acquisition Proposal. Notwithstanding , except, for purposes of this clause (iv) to notify such person of the foregoingexistence of the provisions of this Section 6.13(a); provided that prior to the date of the Company Meeting, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One VoteCompany receives from any person other than Parent, in the case Parent Bank or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives their respective Representatives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to, and participate in such negotiations or in, discussions with the such person making the with respect to such Acquisition Proposal if but only to the extent that, prior to doing so, its 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 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 be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, prior to furnishing providing any confidential or nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to this sentencethe foregoing proviso, the Company shall have provided such party information or data to Parent and shall have entered into a confidentiality agreement with the such person making such Acquisition Proposal on terms no less favorable stringent to it such person than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company or its Representatives. Each party 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 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 Discover or Capital OneParent, Parent Bank and their Representatives in their capacity as applicable, such) with respect to any Acquisition Proposal. Each party 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 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, Parent Bank and their Representatives in their capacity as such) pursuant to any such agreement.
(c) Promptly (and in any event within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which that could reasonably be expected to lead to an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy copies of any such written Acquisition Proposal and written summaries of any draft agreements, proposals or other materials received in connection with any such inquiry or material oral communications relating to an Acquisition Proposal), and will keep the other party Parent 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(bd) 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 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.As used herein,
Appears in 2 contracts
Sources: Merger Agreement (Two River Bancorp), Merger Agreement (Oceanfirst Financial Corp)
Acquisition Proposals. (a) Each party agrees that it will From the date hereof until the termination of this Agreement, Stone and its Subsidiaries shall not, will and shall cause each of its Subsidiaries not to and will cause its and their respective officers, directors and directors, employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) or other agents not to, directly or indirectly, (i) initiate, take any action to solicit, knowingly initiate or encourage any Stone Acquisition Proposal or knowingly facilitate (ii) engage in discussions or negotiations with, or disclose any inquiries nonpublic information relating to Stone or its Subsidiaries, respectively, or afford access to their respective properties, books or records to any Person that may be considering making, or has made, a Stone Acquisition Proposal. Nothing contained in this Section 7.2(a) shall prohibit Stone and its Board of Directors and officers from (i) taking such actions necessary to comply with Rules 14d-9 and 14e-2(a) promulgated by the SEC under the Exchange Act, or (ii) furnishing information, including nonpublic information, to or entering into negotiations with, any Person that has indicated its willingness to make an unsolicited bona fide Stone Acquisition Proposal if, and only to the extent that (with respect to clause (ii) of this Section 7.2(a) only):
(A) such interest in making an unsolicited bona fide Stone Acquisition Proposal is made by a third party that Stone’s Board of Directors determines in good faith has the good faith intent to proceed with negotiations to consider, and the financial capability to consummate, such Stone Acquisition Proposal,
(B) Stone’s Board of Directors, after duly consulting with Stone’s outside legal counsel, determines in good faith that such action is necessary for Stone’s Board of Directors to comply with its fiduciary duties imposed by applicable law,
(C) contemporaneously with furnishing such information to, or entering into discussions with, such Person, Stone enters into a customary confidentiality agreement with such Person,
(D) contemporaneously with furnishing such information to, or entering into discussions or negotiations with, such Person, Stone provides written notice to Wave to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, and
(E) Stone uses all reasonable efforts to keep Wave informed in all material respects of the status and terms of any such negotiations or discussions (including the identity of the Person with whom such negotiations or discussions are being held) and provides Wave copies of such written proposals and any amendments or revisions thereto or correspondence related thereto; provided, that Wave agrees to execute a confidentiality agreement, in form reasonably acceptable to it, with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic such information or data to, or have or participate in any discussions with any person relating delivered to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided Wave pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreementclause (E), which confidentiality agreement shall not provide such person with any exclusive right be subject to negotiate with such party. Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions Wave’s disclosure obligations arising under applicable law or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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 thereofsecurities exchange regulations.
(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 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 (Healthtronics Surgical Services Inc), Merger Agreement (Prime Medical Services Inc /Tx/)
Acquisition Proposals. (a) Each party agrees that it will not, will cause The Company and each of its Subsidiaries not to Subsidiaries, and will cause its and each of their respective directors, officers, directors employees, agents and employees representatives, will immediately cease any discussions or negotiations presently being conducted with respect to any Acquisition Proposal (as defined in Section 6.8(g)). The Company and its Subsidiaries will not to, and will use its reasonable their best efforts to cause its agentstheir respective directors, advisors officers, employees, agents and representatives not to (collectively, “Representatives”i) not toinitiate or solicit, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to the making of, any Acquisition Proposal or (ivii) unless this Agreement has been terminated except as expressly permitted in accordance with its termsSection 6.8(b), approve engage in any negotiations or discussions with, furnish any information or data to or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or any party relating to any Acquisition Proposal. The Company will be responsible for any breach of the provisions of this Section 6.8 by any director, officer, employee, agent or representative of the Company or any of its Subsidiaries.
(b) Notwithstanding the foregoingprovisions of Section 6.8(a) but subject to the other provisions of this Section 6.8, the Company may engage in discussions or negotiations with, furnish information and data to, withdraw, modify or amend its recommendation and approval of the event Merger and enter into a letter of intent, agreement in principle, acquisition agreement or similar agreement with any party that submits an Acquisition Proposal to the Company after the date of this Agreement and on or prior to June 30, 1999 (the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if "Applicable Period") which the Board of Directors of such party concludes the Company by majority vote determines in its 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 judgment could reasonably be more likely than not expected to result in a violation Superior Acquisition Proposal (as defined in Section 6.8(h)).
(c) Nothing in this Section 6.8 will prevent the Board of Directors of the Company from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Securities Exchange Act with respect to any publicly announced unsolicited tender offer or otherwise from making any disclosure to its fiduciary duties stockholders if, in its good faith judgment based on the opinion of outside legal counsel, failure to so disclose would be inconsistent with its obligations under applicable law; provided, that, prior to furnishing provided that the Board of Directors will not recommend that the stockholders of the Company tender their shares of Company Common Stock in connection with any confidential or nonpublic information permitted such tender offer unless (i) such tender offer is determined to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement Superior Acquisition Proposal in accordance with the person making provisions of Section 6.8(h) and (ii) the Company has provided the Parent Corporation with not less than five business days prior written notice of any such Acquisition Proposal 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 such party. Each party will, and action.
(d) The Company will cause within 24 hours after 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or provide the Parent Corporation with a copy of such Acquisition Proposal or, in connection with any inquiry which could reasonably be expected to lead to an non-written Acquisition Proposal, and the substance thereof (including a written statement setting forth in reasonable detail the terms and conditions of and such Acquisition Proposal, including the identity of the person making such inquiry acquiring party. The Company will promptly inform the Parent Corporation of the status and content of any discussions or negotiations involving any Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received in . In connection with any such inquiry or determination by the Board of Directors of the Company that an Acquisition Proposal is a Superior Acquisition Proposal, and the Company will keep within 24 hours after the other party apprised making of any related developments, discussions and negotiations on such determination provide the Parent Corporation with a current basis, including any amendments to or revisions written summary in reasonable detail of the terms of reasons for such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce determination.
(e) In no event will the Company provide any existing confidentiality or standstill agreements to which it non-public information regarding the Company or any of its Subsidiaries is to any party making an Acquisition Proposal unless such party enters into a written confidentiality agreement containing confidentiality provisions substantially similar to those contained in the Confidentiality Agreement. In the event the Company enters into any confidentiality agreement with a party pursuant to the provisions of this Section 6.8(e) that does not include terms and conditions that are substantially similar to those contained in the sixth paragraph of the Confidentiality Agreement (the "Standstill Provisions"), then the Parent Corporation and its Subsidiaries will be released from their obligations under the Standstill Provisions to the same extent as such party.
(f) The Company will not enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement with respect to any Superior Acquisition Proposal unless (i) the Company has provided the Parent Corporation with not less than five business days prior written notice of such action and (ii) such action is taken by the Company concurrently with or after the termination of this Agreement in accordance with the terms thereofprovisions of Section 8.1(e).
(bg) Nothing contained The term "Acquisition Proposal" as used in this Agreement shall prevent means any bona fide proposal, whether or not in writing, made by a party or its Board of Directors from complying with to acquire beneficial ownership (as defined under Rule 14d-9 and Rule 14e-2 13(d) promulgated under the Securities Exchange Act with respect to an Acquisition Proposal; providedAct) of all or a material portion of the assets of, that such rules will in no way eliminate or modify any material equity interest in, the effect that any action Company and Subsidiaries taken as a whole pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender or exchange offer or similar transaction involving the Company or any of its Subsidiaries, including any single or multi-step transaction or series of related transactions that is structured to permit such rules would otherwise have under this Agreementparty to acquire such beneficial ownership.
Appears in 2 contracts
Sources: Merger Agreement (General Dynamics Corp), Merger Agreement (Gulfstream Aerospace Corp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One IBTX Vote, in the case or Capital OneIBTX, or the Requisite Discover TCBI Vote, in the case of DiscoverTCBI, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover TCBI or Capital OneIBTX, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to IBTX or TCBI, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Group, Inc.), Merger Agreement (Independent Bank Group, Inc.)
Acquisition Proposals. (a) Each party AMNB agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal Proposal, (iv) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract), or (ivv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One AMNB Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party AMNB receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11(a), such party AMNB may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (but only if AMNB shall have provided such information to Buyer concurrently or prior to furnishing it to any such person) and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party AMNB concludes in good faith (after receiving the advice of consulting with its outside counsel, and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or could reasonably be expected to lead to, a Superior Proposal and that the failure to take such actions would be more reasonably likely than not to result in be a violation of its fiduciary duties under applicable law; provided, that, that prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party AMNB shall have (A) provided such information to Buyer and entered into a confidentiality agreement with the person making such Acquisition Proposal 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 AMNB or otherwise prevent AMNB from providing any information to Buyer in accordance with this Agreement or otherwise comply with its obligations under this Agreement, and (B) provided Buyer with at least one (1) business day prior notice of taking any such partyaction. Each party AMNB will, and will cause its Representatives to, (x) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital Onethe parties hereto, as applicable, with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal. Each party , and (y) request the prompt return or destruction of all confidential information previously furnished to any person (other than the parties hereto and its Representatives) that has made or indicated an intention to make an Acquisition Proposal.
(b) AMNB will promptly (within twenty-four (24) hours) advise the other party Buyer following receipt of (i) any Acquisition Proposal or (ii) any request for nonpublic information or any other inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Buyer 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 (or a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral), and will keep the other party Buyer apprised (and in any event within twenty-four (24) hours) of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each .
(c) As used in this Agreement, (i) “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 AMNB and its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of AMNB, or twenty-five percent (25%) or more of any class of equity or voting securities of AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of AMNB, (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 AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of AMNB, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving AMNB or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of AMNB and (ii) “Superior Proposal” shall use its reasonable best efforts to enforce mean any existing confidentiality or standstill agreements unsolicited bona fide written Acquisition Proposal with respect to which it or any the Board of Directors of AMNB determines in its Subsidiaries good faith judgment (after consulting with its outside legal counsel and its financial advisor) is a party reasonably likely to be consummated in accordance with the terms thereof.
(b) Nothing contained proposed, and if consummated, would result in a transaction more favorable, from a financial point of view, to AMNB’s shareholders than the Merger and the other transactions contemplated by this Agreement shall prevent a party or its Board of Directors from complying with Rule 14d-9 (as it may be proposed to be amended by Buyer), taking into account all legal, financial, regulatory and Rule 14e-2 under other relevant factors (including (A) the Exchange Act with respect Acquisition Proposal and this Agreement (including any proposed changes to an this Agreement that may be proposed by Buyer in response to such Acquisition Proposal), and (B) any conditions to closing and certainty of closing, timing, any applicable break-up fees and expense reimbursement provisions, and ability of such offeree to consummate the Acquisition Proposal); provided, that such rules will for purposes of the definition of “Superior Proposal,” the references to “twenty-five percent (25%)” in no way eliminate or modify the effect that any action pursuant definitions of Acquisition Proposal shall be deemed to such rules would otherwise have under this Agreementbe references to “fifty percent (50%)”.
Appears in 2 contracts
Sources: Merger Agreement (Atlantic Union Bankshares Corp), Merger Agreement (American National Bankshares Inc.)
Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, the Company agrees that it will shall not, will and shall cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees the other Company Entities not to, and will shall not authorize and shall use its reasonable best efforts to cause its agentsand their officers and directors, advisors managers or equivalent, and representatives (collectively, “Representatives”) other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate any inquiries inquiry, discussion, offer or proposals with respect request that constitutes, or could reasonably be expected to any lead to, an Acquisition ProposalProposal (an “Inquiry”), (ii) engage or participate in any discussions or negotiations with regarding, or furnish to any person concerning Third Party any non-public information in connection with, or knowingly facilitate in any way any effort by, any Third Party in furtherance of any Acquisition ProposalProposal or Inquiry, (iii) provide any confidential approve or nonpublic information or data torecommend an Acquisition Proposal, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any Acquisition Proposal. Notwithstanding of the foregoing.
(b) Notwithstanding anything to the contrary in this Section 6.5, at any time prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in the event that response to an unsolicited bona fide written Acquisition Proposal by a Third Party made after the date of this Agreement (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the receipt of Company receives from the Requisite Capital One VoteThird Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company Entities that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the case or Capital One, or the Requisite Discover VoteAcquisition Proposal if, in the case of Discovereach of clauses (i) and (ii), the Company Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a party receives an unsolicited bona fide written Superior Proposal.
(c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company Entities by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Acquisition Proposal, such party mayrequest or Inquiry and the material terms and conditions of any Acquisition Proposals, Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt of , notify Parent orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any inquiry which could Person in accordance with this Section 6.5(c) and keep Parent reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity informed of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy status and material terms of any such Acquisition Proposal and any draft agreementsproposals, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developmentsoffers, discussions and or negotiations on a current basis, including by providing a copy of all material documentation or material correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor any amendments committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or revisions qualify), in a manner adverse to any Parent Party, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Company Recommendation in the Joint Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Acquisition Proposal within ten (10) Business Days of the terms request of Parent and/or fail to reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (provided that Parent shall not be permitted to make such inquiry or request on more than one (1) occasion in respect of each Acquisition Proposal and each material modification to an Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or , if any) (any of its Subsidiaries is a party the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit any Company Entity to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the terms thereofcontrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (A) (x) has received an unsolicited bona fide Acquisition Proposal (that did not result from a breach of this Section 6.5) that, in the good faith determination of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the Parent Parties pursuant to Section 6.5(e), and such Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, and in such case the Company may (i) terminate this Agreement pursuant to Section 8.1(c)(ii) or (ii) make an Adverse Recommendation Change, including approving or recommending such Superior Proposal to the Company’s stockholders, and, in the case of a termination, the Company may immediately prior to or concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; or (B) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law (based on circumstances not covered by clause (A)), and, in such case the Company may make an Adverse Recommendation Change, provided, that, in the case of each of clause (A) and clause (B), in the event of any termination by the Company or Parent pursuant to Section 8.1(c)(ii) or Section 8.1(d)(ii), as may be applicable, the Company complies with its obligation to pay the Termination Payment pursuant to Section 8.3(a).
(be) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.5(d) unless (i) the Company has provided a written notice (a “Notice of Adverse Recommendation Change”) to the Parent Parties that the Company intends to take such action, specifying in reasonable detail the reasons therefor and, in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party), (ii) during the three (3) Business Day period following the Parent Parties’ receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall cause its Representatives to, negotiate with the Parent Parties in good faith (to the extent the Parent Parties desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is no longer necessary, and (iii) following the end of the three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by the Parent Parties in response to the Notice of Adverse Recommendation Change or otherwise, (x) that in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), the Superior Proposal giving rise to the Notice of Adverse Recommendation Change, continues to constitute a Superior Proposal, and (y) after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. After compliance with this Section 6.5(e) with respect to any two (2) Superior Proposals, the Company shall have no further obligations under this Section 6.5(e), and the Company Board shall not be required to comply with such obligation with respect to any other Superior Proposal.
(f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prevent prohibit the Company or the Company Board, directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a party position contemplated by Rule 14e-2(a) or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of the Company Recommendation shall be deemed to be an Adverse Recommendation Change.
(g) Upon execution of this Agreement, the Company shall, and shall cause each of the other Company Entities, and its and their officers and directors, managers or equivalent, and other Representatives to (i) immediately cease any existing discussions, negotiations or communications with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which any Company Entity is a party or of which any Company Entity is a beneficiary. The Company shall use reasonable best efforts to cause all Third Parties who have been furnished confidential information regarding any Company Entity in connection with the solicitation of or discussions regarding an Acquisition Proposal; provided, Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that they are entitled to have such rules will in no way eliminate information returned or modify the effect that any action pursuant to such rules would otherwise have under destroyed).
(h) For purposes of this Agreement.:
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Real Estate Investments, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Brookline Vote, in the case of DiscoverBrookline, or the Requisite Berkshire Vote, in the case of Berkshire, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 outside financial advisors) that failure to take such actions would reasonably be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable in the aggregate to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party reasonably 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to Berkshire or Brookline, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets of a party and its Subsidiaries or 20% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 20% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 20% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Brookline Bancorp Inc), Merger Agreement (Berkshire Hills Bancorp Inc)
Acquisition Proposals. (a) Each party agrees that it will Parent shall not, will and shall cause each of its Subsidiaries not to to, and will shall cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal (except to notify a person that has made, or to the knowledge of such party, is making inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Parent Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Parent receives an unsolicited bona fide written Acquisition Proposal, such party Parent may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party Parent 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 law; provided, provided that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Parent shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyParent. Each party Parent will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, Company with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity In furtherance of the person making such inquiry or Acquisition Proposal)foregoing, will provide as soon as practicable following the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.execution and
Appears in 2 contracts
Sources: Merger Agreement (HomeStreet, Inc.), Merger Agreement (HomeStreet, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees officers not to, and will use shall not permit its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Viking Vote, in the case of DiscoverViking, or the Requisite Camber Vote, in the case of Camber, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal and such person’s Representatives if 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will 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 Discover Viking or Capital OneCamber, as applicable, with respect to any Acquisition Proposal. , and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Viking or Camber, as applicable, other than the Merger, any offer, proposal or inquiry, or any third-party indication of interest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party (or its affiliates) beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such rules would otherwise have under this Agreementtransaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Camber Energy, Inc.), Merger Agreement (Camber Energy, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover PACW Vote, in the case of DiscoverPACW, or the Requisite BANC Vote, in the case of BANC, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it such party than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to BANC or PACW, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third-party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (Pacwest Bancorp), Merger Agreement (Banc of California, Inc.)
Acquisition Proposals. (a) Each party agrees that it will notwill, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 Flagstar, in the case of NYCB, or NYCB, in the case of Flagstar, with respect to any Acquisition Proposal.
(b) Each party agrees that it will not, and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except (x) to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.13 and (y) to seek and obtain legal or financial advice from such party’s outside counsel and outside financial advisors, as applicable), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. .
(c) Notwithstanding anything to the foregoingcontrary set forth in Section 6.13(a) or 6.13(b), in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover NYCB Vote, in the case of DiscoverNYCB, or the Requisite Flagstar Vote, in the case of Flagstar, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to and participate in such negotiations or discussions with the person making the Acquisition Proposal Proposal, or any Representative of the person making the Acquisition Proposal, if 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 outside 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 furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. .
(d) Each party will promptly (and, in any event, within twenty-four (24) hoursone business day after receipt) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(be) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent a party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act mean, (i) with respect to an Acquisition Proposal; providedFlagstar, that such rules will in no way eliminate or modify other than the effect that any action pursuant to such rules would otherwise have under transactions contemplated by this Agreement, any third-party offer, proposal or inquiry relating to, or any third-party indication of interest in, (A) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Flagstar and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of Flagstar or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Flagstar, (B) 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 Flagstar or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Flagstar, or (C) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Flagstar or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Flagstar; and (ii) with respect to NYCB, other than the transactions contemplated by this Agreement, any third-party offer, proposal or inquiry relating to, or any third-party indication of interest in, transactions described in subclauses (A) through (C) of clause (i) of this Section 6.13(e), substituting (x) “NYCB” for “Flagstar” thereof and (y) “50%” for “25%” thereof.
Appears in 2 contracts
Sources: Merger Agreement (New York Community Bancorp Inc), Merger Agreement (Flagstar Bancorp Inc)
Acquisition Proposals. (a) Each party agrees that it will (i) From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Regis shall not, will cause each nor shall it permit any of its Subsidiaries not to and will cause to, nor shall it or its and Subsidiaries authorize or permit any of their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (iA) initiate, solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or proposals with respect the making of any offer or proposal which constitutes or that would reasonably be expected to lead to, any Regis Acquisition Proposal, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger agreement option agreement, or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating related to any Regis Acquisition Proposal (each, a “Regis Acquisition Agreement”) or (C) participate in any discussions or negotiations regarding, or take any other action knowingly to facilitate any inquiries or the making of any offer or proposal that constitutes, or that would reasonably be expected to lead to, any Regis Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt Regis Shareholders Meeting, and without any breach of the Requisite Capital One Voteterms of this Section 7.5(a), in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Regis receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Regis Acquisition Proposal if from any Person that in the good faith judgment of Regis’s Board of Directors of such party concludes in good faith constitutes, or is reasonably likely to lead to, a Superior Regis Proposal, Regis may (after receiving the advice of its outside counsel, and x) furnish information (including non-public information) with respect to financial matters, its financial advisors) that failure Regis to take any such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided Person pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on containing terms no less favorable to it restrictive on such Person than those in the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right Agreement are to negotiate ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and (y) participate in negotiations with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Person regarding such Regis Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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 (Alberto Culver Co), Merger Agreement (Regis Corp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover CrossFirst Vote, in the case of DiscoverCrossFirst, or the Requisite Busey Vote, in the case of Busey, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 outside 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 furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to Busey or CrossFirst, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (A) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (B) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (C) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (First Busey Corp /Nv/), Merger Agreement (Crossfirst Bankshares, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover First Midwest Vote, in the case of DiscoverFirst Midwest, or the Requisite Old National Vote, in the case of Old National, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 outside 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 furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to Old National or First Midwest, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 2 contracts
Sources: Merger Agreement (First Midwest Bancorp Inc), Merger Agreement (Old National Bancorp /In/)
Acquisition Proposals. (a) Each Subject to Section 6.7(b) below, unless and until this Agreement shall have been terminated by either party agrees that it will notpursuant to Article VIII hereof, will cause each none of its Subsidiaries not to and will cause its and AHM, New Holdco or the Company shall take or cause, directly or indirectly (through their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, advisors and representatives representatives, agents or affiliates, including any investment bankers, attorneys or accountants (collectively, “the "Representatives”")), any of the following actions with any party other than AHM or New Holdco or their designees (in the case of the Company) or the Company (in the case of AHM and New Holdco): (i) solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any offer or proposal to acquire all or a significant part of its business, assets or capital stock whether by merger, consolidation or other business combination, purchase of assets, tender or exchange offer or otherwise, other than with respect to a sale transaction permitted under Section 5.1 or 5.2 hereof (each of the foregoing, an "Acquisition Proposal"); (ii) disclose, in connection with an Acquisition Proposal, any information or provide access to its properties, books or records, except as required by law or pursuant to a governmental request for information; (iii) enter into or execute any agreement relating to an Acquisition Proposal; or (iv) make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal other than with respect to the Merger, or as otherwise required by applicable law. This Section 6.7(a) shall not limit the ability of the Company or AHM to sell assets in accordance with Sections 5.1(f) or 5.2(g) hereof, respectively.
(b) Notwithstanding the foregoing, prior to the Stockholder Approvals, (the "Applicable Period"), in response to a bona fide, unsolicited, written Acquisition Proposal from a Third Party (that does not result from a breach of this Section 6.7), the Board of Directors of the party receiving such Acquisition Proposal may, and may authorize and permit its Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals provide such Third Party with respect to any Acquisition Proposalnonpublic information, (ii) engage otherwise facilitate any effort or participate in any negotiations with any person concerning any attempt by such Third Party to make such Acquisition Proposal, (iii) provide agree to or recommend or endorse any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any such Acquisition Proposal with or by any Third Party, (iv) unless withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party hereto, its approval and recommendation of the Merger and this Agreement has been terminated Agreement, and (v) participate in accordance discussions and negotiations with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or such Third Party relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written such Acquisition Proposal, such party may, if and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause only to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if extent that (x) the Board of Directors of the party receiving such party concludes Acquisition Proposal, or any committee thereof, determines in good faith (after receiving the advice of its outside counsel, and consultation with respect to financial matters, its financial advisorsadvisor and legal counsel) that failure to take such actions would be Acquisition Proposal is more favorable or is likely than not to result in an Acquisition Proposal that is more favorable to its stockholders than the Merger and is made by a violation Person believed by the Board of its fiduciary duties under applicable law; providedDirectors of the party receiving such Acquisition Proposal, thator any committee thereof, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentencereasonably capable of completing such Acquisition Proposal (a "Superior Proposal"), such party shall have and (y) the Third Party has entered into a confidentiality agreement with pertaining to nonpublic information regarding the person making party receiving such Acquisition Proposal on containing terms in the aggregate no less more favorable to it the Third Party than those in the Confidentiality Agreement, which confidentiality . Neither party shall enter into any agreement shall not provide such person with any exclusive right implementing a Superior Proposal prior to negotiate with such party. Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date termination of this Agreement in accordance with any person other than Discover or Capital One, as applicable, with respect to any Section 8.1 below.
(c) The party receiving such Acquisition Proposal. Each party will Proposal shall promptly (within twenty-four (24) hours) advise the other party following receipt orally and in writing of any request for information or any Acquisition Proposal it receives and any material change in the terms thereof (but not the terms or identity of the Person making such request or Acquisition Proposal).
(d) Nothing contained in this Section 6.7 shall prohibit the Company or AHM or their respective Boards of Directors (i) from taking and disclosing to their respective stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from making any inquiry which could reasonably be expected legally required disclosure to lead their respective stockholders with regard to an Acquisition Proposal, and or (ii) prior to the substance thereof Company Stockholder Approval or the AHM Stockholder Approval, as appropriate, from taking any action as contemplated by Section 8.1(d)(iii) or 8.1(e)(iii) below. Nothing in this Section 6.7 shall permit the Company or AHM to terminate this Agreement (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposalexcept as specifically provided in Article VIII hereof), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(be) Nothing contained in For purposes of this Agreement shall prevent a party or its Section 6.7, references to the Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under of the Exchange Act with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate or modify Company shall include the effect that any action pursuant to such rules would otherwise have under this AgreementSpecial Committee.
Appears in 2 contracts
Sources: Merger Agreement (Apex Mortgage Capital Inc), Merger Agreement (American Home Mortgage Holdings Inc)
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will shall use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal (except to notify a person that has made, or to the knowledge of such party, is making inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.12) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Parent Vote, in the case or Capital OneParent, or the Requisite Discover Company Vote, in the case of DiscoverCompany, a party Party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.12(a), such party Party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.such
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.14), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One BancorpSouth Vote, in the case or Capital OneBancorpSouth, or the Requisite Discover Cadence Vote, in the case of DiscoverCadence, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover Cadence or Capital OneBancorpSouth, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to BancorpSouth or Cadence, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party. .
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notExcept as expressly permitted by this Section 5.6, will cause each from and after the date of its Subsidiaries not to this Agreement until the earlier of the Effective Time and will the termination of this Agreement in accordance with Section 7.1, (i) the Company shall, and shall cause its subsidiaries and their respective officers, directors Representatives to (A) cease and employees not tocause to be terminated any existing discussion or negotiation with any Third Parties with respect to a Competing Proposal, and will use (B) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its reasonable best efforts subsidiaries; and (ii) the Company shall not, and shall not permit any of its subsidiaries or their respective Representatives to cause its agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (iA) solicit, initiate, solicit, knowingly encourage or knowingly facilitate (including by providing information or granting any inquiries waiver, amendment or proposals with respect release under any standstill or confidentiality agreement or Takeover Statutes or otherwise) any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to any Acquisition lead to, a Competing Proposal, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposalengage, (iii) provide any confidential or nonpublic information or data to, or have continue or participate in any discussions with (except to notify such Third Party of the existence of this Section 5.6) or negotiations with, or furnish any person non-public information relating to the Company or any Acquisition of its subsidiaries to, or afford access to the books or records of the Company or its subsidiaries to, any Third Party that would reasonably be expected to lead to a Competing Proposal or any Third Party that, to the knowledge of the Company, is seeking to make, or has made, a Competing Proposal, (ivC) unless this Agreement has been terminated in accordance with its termsapprove, approve endorse, recommend or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar definitive agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance an Acceptable Confidentiality Agreement) with this Section 6.13) in connection with or relating respect to any Competing Proposal (an “Alternative Acquisition Proposal. Notwithstanding Agreement”) or (D) resolve to propose, agree or publically announce an intention to do any of the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event that from and after the date of this Agreement until the earlier to occur of the Offer Closing and obtaining the Requisite Stockholder Approval, if the Company receives a bona fide unsolicited written Competing Proposal from any Third Party, the Company or the Company Board, directly or indirectly through its Representatives, may, (i) contact such Third Party to clarify the terms and conditions thereof, (ii) furnish non-public information to such Third Party (provided, however, that (A) prior to so furnishing such information, the receipt Company receives from such Third Party an executed Acceptable Confidentiality Agreement, (B) any non-public information concerning the Company or its subsidiaries provided to any Third Party given such access shall, to the extent not previously provided to Parent or Merger Sub, be substantially concurrently provided to Parent or Merger Sub (which requirement may be satisfied by posting such information to the Electronic Data Room provided that written notice of such posting (which may be satisfied by email) is provided to or made available to Parent promptly (and in any event within four (4) hours) after such posting) and (C) the Company and the Company Board 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) could reasonably be likely to be harmful to the operation of the Requisite Capital One Vote, Company in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party mayany material respect), and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish (iii) engage in discussions or cause to be furnished confidential or nonpublic information or data and participate in negotiations with such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and Third Party with respect to financial mattersthe Competing Proposal, if and only if, with respect to each of clause (i), (ii) and (iii) above, (x) such Third Party has submitted a bona fide unsolicited written Competing Proposal which the Company Board determines in good faith, after consultation with its financial and legal advisors, constitutes, or would reasonably be expected to lead to, a Superior Proposal, (y) the Company Board determines in good faith, after consultation with its legal advisors, that failure to take such actions action would be more likely than not inconsistent with the directors’ fiduciary duties under applicable Law, and (z) the Company has provided prior oral and written notice to result Parent and Merger Sub of the determination of the Board.
(c) Except as set forth in Section 5.6(d) or Section 5.6(e), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a violation manner adverse to Parent or Merger Sub, the Company Recommendation, (ii) fail to include the Company Recommendation in the Schedule 14D-9 or, if applicable, the Proxy Statement, (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Competing Proposal, or (iv) fail to recommend against any Competing Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Proposal (any of the actions described in clauses (i) through (iv) of this Section 5.6(c) and the proviso set forth in Section 5.6(g), an “Adverse Recommendation Change”) or (v) cause or permit the Company to enter into any Alternative Acquisition Agreement.
(d) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the earlier to occur of the Offer Closing and obtaining the Requisite Stockholder Approval, the Company Board shall be permitted to take any of the actions set forth in Section 5.6(c)(i) and Section 5.6(c)(ii) if (i) an event, fact, development, circumstance or occurrence (but specifically excluding any Competing Proposal) that affects the business, assets or operations of the Company or its subsidiaries not known to the Company as of the date hereof becomes known to the Company Board after the date of this Agreement (an “Intervening Event”), (ii) as a result thereof, the Company Board determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (iii) the Company Board has complied with the requirements set forth in clauses (A) through (C) of Section 5.6(e) as if such requirements in connection with an Adverse Recommendation Change relating to a Superior Proposal related to an Intervening Event.
(e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(b), at any time prior to the earlier to occur of the Offer Closing and obtaining the Requisite Stockholder Approval, the Company Board shall only be permitted to (y) effect an Adverse Recommendation Change or (z) cause or permit the Company to enter into an Alternative Acquisition Agreement and terminate this Agreement under Section 7.1(c)(ii) if and only if, in either case, (i) the Company Board has received a bona fide unsolicited written Competing Proposal which did not, directly or indirectly, arise from or in connection with any breach of Section 5.6(a) or Section 5.6(b) and that, in the good faith determination of the Company Board, after consultation with its financial and legal advisors, constitutes a Superior Proposal and (ii) the Company Board determines in good faith, after consultation with its legal advisors, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall not take the actions in either clause (y) or (z) above unless and until (A) the Company notifies Parent in writing (a “Notice of Superior Proposal”), at least three (3) Business Days in advance of taking such action, that the Company Board intends to take the action in clause (y) or (z) above, as the case may be, which Notice of Superior Proposal shall specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and shall attach the agreement and all related documentation providing for such Superior Proposal; (B) after providing such Notice of Superior Proposal and prior to taking such action in clause (y) or (z) above, as the case may be, the Company shall negotiate in good faith with Parent during such three (3) Business Days period (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement, the Financing Commitments and the Guarantee as would permit the Company Board (consistent with its fiduciary duties under applicable lawLaw) not to take such action in clause (y) or (z) above, as the case may be; and (C) the Company Board shall have considered in good faith any changes to this Agreement, the Financing Commitments and the Guarantee offered in writing by Parent in a manner that would form a binding contract if accepted by the Company and shall have determined in good faith that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal (or material change to the Intervening Event) shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 5.6(e); provided, thathowever, prior that references to furnishing any confidential or nonpublic information permitted the three (3) Business Days period above shall be deemed to be provided pursuant references to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, two (2) Business Day period with respect to any Acquisition Proposal. Each party will such amendment to a previous Superior Proposal (or Intervening Event).
(f) From and after the date hereof, the Company shall promptly (and, in any event, within twentyforty-four eight (2448) hours) advise , notify Parent and Merger Sub of receipt by the other party following receipt Company of any Acquisition Competing Proposal (or any inquiry which could reasonably be expected to lead to an Acquisition or request for negotiating or discussing a Competing Proposal) or any request for non-public information in connection with any Competing Proposal, and the substance thereof (including the material terms and conditions of and any such Competing Proposal or request (including the identity of the person making Third Party and, if applicable, copies of any documents relating to such inquiry or Acquisition ProposalCompeting Proposal (provided, that any fee letters may be redacted to the extent required to comply with confidentiality provisions), will provide the other party with an unredacted copy and shall as promptly as reasonably practicable (and in any event on a daily basis) advise Parent and Merger Sub of any material amendments to any such Acquisition Competing Proposal or request and shall keep Parent reasonably informed on a daily basis of the status and terms thereof. The Company shall not enter into any draft agreements, proposals or other materials received in connection agreement with any such inquiry or Acquisition Proposal, and will keep Third Party which would prevent the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance Company from complying with the terms thereofprovisions of this Agreement.
(bg) Nothing contained in this Agreement shall prevent a party prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Board of Directors Representatives, from (i) complying with its disclosure obligations under applicable Law with regard to a Competing Proposal, including taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to Rule 14d-9 and or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company’s stockholders); (ii) making any “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to the Company’s stockholders), in the case of either clause (i) or (ii), if the Company Board has determined in good faith, after consultation with legal advisors, that the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law; or (iii) complying with its disclosure obligations under applicable Law to make accurate disclosure to the Company’s stockholders of any factual information regarding the business, financial condition or results of operations of the Company; provided, however, that any disclosures pursuant to clause (i) above other than an express rejection of the applicable tender or exchange offer or an unqualified reaffirmation of the Company Recommendation shall be deemed to be an Adverse Recommendation Change. Between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, upon the written request by Parent (A) following any disclosure specified in clauses (i), (ii) or (iii) above or (B) in the event (x) a Competing Proposal has been made publicly known, (y) an Intervening Event has been made publicly known or (z) any other event or circumstance has occurred that could reasonably be expected to prevent or materially delay or impair the ability of the parties to consummate the Offer, the Merger or the other transactions contemplated by this Agreement on a timely basis, the Company Board shall expressly publicly reaffirm the Company Recommendation within ten (10) Business Days following such request, and failure to do so shall be deemed to be an Adverse Recommendation Change.
(h) The approval of the Company Board for purposes of causing any Takeover Statute to be inapplicable to the transactions contemplated by this Agreement and/or the Support Agreements shall be irrevocable and unconditional while this Agreement remains in effect and no Adverse Recommendation Change in and of itself shall change such approval for purposes of causing any Takeover Statute to be inapplicable to the transactions contemplated hereby or thereby. To the extent Parent and/or the Company believes that there has been a breach by a Third Party of any standstill provision to which the Company or any of its subsidiaries is a party, the Company shall use reasonable best efforts to enforce such standstill provision to the extent permitted by applicable Law.
(i) Notwithstanding any provision of Section 5.6(b), but subject to applicable Law, and in furtherance of Section 5.6(a), the Company Board shall not grant any waiver or release under any standstill agreement with respect to an Acquisition Proposal; providedany class of equity securities of the Company. The Company shall enforce, that such rules will in no way eliminate and shall not release or modify permit the effect that release of any action pursuant person from, or amend, waive, terminate or modify, and shall not permit the amendment, waiver, termination or modification of, any provision of, any confidentiality or similar agreement or provision to such rules would otherwise have which the Company or any of its subsidiaries is a party or under which the Company or any of its subsidiaries has any rights to the extent permitted by applicable Law.
(j) For purposes of this Agreement.:
Appears in 1 contract
Sources: Merger Agreement (MModal Inc.)
Acquisition Proposals. Notwithstanding anything to the contrary set forth in this Section 6.3, if, at any time from and after the No-Shop Period Start Date until the Company’s receipt of the Company Stockholder Approval, (ax) Each party agrees the Company receives a bona fide written Acquisition Proposal from any Person that it will not, will cause each of its Subsidiaries did not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not toresult, directly or indirectly, from a material breach by the Company of its obligations under this Section 6.3 and (y) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and the failure to take the actions described in the following clauses (i) initiateand (ii) would be inconsistent with its fiduciary duties pursuant to applicable Law, solicitthen the Company Group and the Company Board (or a committee thereof) or the Special Committee, knowingly encourage as applicable, may, directly or knowingly facilitate any inquiries indirectly, through one or proposals with respect more of their Representatives, in response to any such Acquisition Proposal, (iii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this an Acceptable Confidentiality Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions Person that has made or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any delivered such Acquisition Proposal and (ii) pursuant thereto, participate or engage in discussions or negotiations with, furnish any draft agreementsnon-public information or data relating to the Company Group to, proposals or afford access to the business, properties, assets, books, records or other materials received in connection with non-public information or data, or to any such inquiry or Acquisition Proposalpersonnel, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of Company Group to, such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or Person and/or any of its Subsidiaries is a party in accordance Representatives; provided that the Company shall prior to or substantially concurrently with the terms thereof.
(b) Nothing contained in this Agreement shall prevent a party time such non-public information or data is provided to such Person or its Board of Directors from complying with Rule 14d-9 Representatives provide to the Parent Parties and Rule 14e-2 under their Representatives access to any non-public information or data that is provided to any Person given such access that was not previously made available to the Exchange Act with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate Parent Parties or modify the effect that any action pursuant to such rules would otherwise have under this Agreementtheir Representatives.
Appears in 1 contract
Sources: Merger Agreement (NeueHealth, Inc.)
Acquisition Proposals. (a) Each party From and after the date hereof --------------------- until the termination of this Agreement, Heritage agrees that neither it will not, will cause each nor any of its Subsidiaries not to nor any of the officers and will cause directors of it or its and their respective officers, directors and employees not toSubsidiaries shall, and will that it shall use its reasonable best efforts to cause its agentsand its Subsidiaries" employees, advisors and representatives representatives, agents or affiliates (collectivelyincluding, “Representatives”without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, solicit or knowingly encourage (including by way of furnishing non- public information or knowingly assistance), or facilitate knowingly, any inquiries or proposals with respect to the making of any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toproposal that constitutes, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 8.1), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its Subsidiaries to take any such action, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide that it shall notify the other party with an unredacted copy of any such Acquisition Proposal orally (within 1 business day) and any draft agreementsin writing (as promptly as practicable, proposals or other materials received but in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms no event later than 2 calendar days) of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters and, if such inquiry or proposal is in writing, it shall deliver to the other party a party in accordance with the terms thereof.
(b) Nothing copy of such inquiry or proposal promptly; provided, however, that nothing contained in this Agreement Section 4.1 shall prevent a party or its prohibit the Board of Directors of Heritage from:
(i) furnishing information to, or entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide proposal to acquire Heritage pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that:
(A) the Board of Directors receives a written opinion from its independent financial advisor that such proposal may be superior to the Merger from a financial point-of-view to Heritage's stockholders;
(B) the Board of Directors determines in good faith that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law (such proposal that satisfies (A) and (B) being referred to herein as a "Superior Proposal"); and
(C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, it:
(1) provides reasonable notice to SouthBanc to the effect that it is furnishing information to, or entering into discussions or negotiations with, another party; and
(2) receives from such person or entity an executed confidentiality agreement in reasonably customary form;
(ii) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect regard to an Acquisition Proposala tender or exchange offer; provided, or
(iii) failing to make or withdrawing or modifying its recommendation and entering into a Superior Proposal if there exists a Superior Proposal and the Board of Directors determines in good faith that such rules will in no way eliminate or modify action is necessary for the effect that any action pursuant Board of Directors to such rules would otherwise have comply with its fiduciary duties to stockholders under this Agreementapplicable law.
Appears in 1 contract
Acquisition Proposals. (a) Each party Subject to Section 8.2(b), each of Adcare and Family agrees that it will shall not, will cause each of directly or indirectly, and shall instruct its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, agents or advisors and or other representatives (collectively, “Representatives”) or consultants not to, directly or indirectly, (i) initiateuntil the Effective Time or the termination of this Agreement, solicit, knowingly encourage solicit or knowingly facilitate initiate any inquiries proposals or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with offers from any person relating to any Acquisition Proposal Proposal.
(b) As promptly as reasonably practicable (and in any event within two days) after receipt of any Acquisition Proposal, the recipient thereof (“Receiving Party”) shall provide the other party (“Non-Receiving Party”) with written notice of the material terms and conditions of such Acquisition Proposal, request or (iv) unless this Agreement has been terminated in accordance with its termsinquiry; the identity of the Person or Persons making any such Acquisition Proposal, approve request or enter into any term sheet, letter inquiry; and a copy of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether all written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) materials provided in connection with or relating to any such Acquisition Proposal, request or inquiry. The Receiving Party shall keep the Non-Receiving Party informed on a reasonably current basis of the status and details of any such Acquisition Proposal or request, and shall promptly (and in any event within two days) provide to the Non-Receiving Party a copy of all written materials subsequently provided to or by the Receiving Party in connection with such Acquisition Proposal or request.
(c) Notwithstanding anything to the foregoingcontrary contained in Section 8.2(a), in the event that after the date of this Agreement hereof and prior to obtaining the receipt requisite stockholder approval, (1) either Family or Adcare receives an unsolicited, bonafide written Acquisition Proposal from a third party that did not result from a breach of this Section 8.2 and (2) its Board of Directors or a committee thereof determines in good faith (following consultation with its legal counsel) that such Acquisition Proposal is, or is reasonably likely to constitute an offer that is more favorable to the Requisite Capital One Votestockholders than the transactions contemplated by this Agreement, and is reasonably capable of being consummated (a “Superior Offer”), then such Receiving Party , its Board of Directors or a committee thereof may directly or indirectly through advisors, agents, other intermediaries or representatives, take the following actions:
(i) furnish non-public information to the third party making such Acquisition Proposal (provided that (A) such Receiving Party enters into a confidentiality agreement the terms of which are at least as restrictive to the third party as the terms contained in the case or Capital OneConfidentiality Agreement referred to in Section 10.9 with the third party prior to furnishing any non-public information, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposaland (B) substantially concurrently with furnishing such information to such third party, such party mayfurnishes copies of such information to the Non-Receiving Party , to the extent not previously provided to the Non-Receiving Party); and
(ii) engage in discussions and may permit its Subsidiaries negotiations (including exchanging draft agreements) with the third party (and its and its Subsidiaries’ Representatives to, furnish or cause representatives) with respect to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if Proposal.
(d) Except as expressly permitted in this Section 8.2(d), the Board of Directors of such party concludes the Receiving Party (or any committee thereof) shall not: (A) withdraw, or modify or change in any manner adverse to the Non-Receiving Party its recommendation in favor of the Merger; (B) approve, adopt or recommend any Acquisition Proposal; or (C) approve or recommend, or allow itself or any subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to any Acquisition Proposal (any of the foregoing a “Change of Recommendation"). Notwithstanding anything to the contrary contained in this Section 8.2, in response to an unsolicited, bona fide written Acquisition Proposal after the date hereof and prior to obtaining the requisite stockholder approval, the Board of Directors of the Receiving Party, or any committee thereof, may effect a Change of Recommendation and terminate this Agreement to enter into a definitive agreement effectuating the Superior Offer described below, if, and only if, all of the following conditions set forth in clauses (i) through (v) are satisfied:
(i) the Board of Directors of the Receiving Party, or any committee thereof, shall have determined in good faith (after receiving consultation with outside legal counsel and financial advisors, its Board of Directors or any committee thereof) that such Acquisition Proposal constitutes a Superior Offer (after giving effect to all of the advice adjustments to the terms of this Agreement which may be offered by it including pursuant to clause (iii) below);
(ii) The Receiving Party (A) shall deliver to the Non-Receiving Party written notice (a "Change of Recommendation Notice") of its outside counselintention to take such action, at least three business days (the “Notice Period") in advance, specifying in such notice the material terms and conditions of such Superior Offer (including the identity of the party making the Superior Offer); and (B) in the event of any material revisions to the Superior Offer after the start of the Notice Period, the Receiving Party shall promptly deliver a new Change of Recommendation Notice to the Non-Receiving Party and comply with the requirements of this clause (ii) with respect to financial matterssuch new notice;
(iii) after delivering the Change of Recommendation Notice, its financial advisors) that failure the Receiving Party shall provide the Non-Receiving Party with an opportunity to take make such actions would be more likely than not to result adjustments in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of this Agreement during such three business day period, and the identity negotiate with respect thereto during such three business day period;
(iv) The Board of Directors of the person making such inquiry or Acquisition Proposal)Receiving Party, will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance committee thereof, shall have determined, after consultation with the terms thereof.
(b) Nothing contained in this Agreement shall prevent a party or outside legal counsel and financial advisors, its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedor any committee thereof, in good faith, that such rules will the failure of the Board of Directors to effect a Change of Recommendation or to terminate this Agreement would reasonably be expected to result in no way eliminate or modify a breach of its fiduciary obligations to the effect that stockholders under applicable Law; and
(v) The Receiving Party shall not have breached any action pursuant to such rules would otherwise have under of the provisions set forth in this AgreementSection 8.2.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will After the date hereof, the Company shall not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not nor shall it permit any Company Subsidiary to, and will use its reasonable best efforts to cause its agentsnor shall it authorize or knowingly permit any affiliate, advisors and representatives (collectivelyofficer, “Representatives”) not todirector, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to
(i) initiate, solicit, knowingly encourage initiate or knowingly facilitate or encourage the submission by any person or group other than Parent, Purchaser, or any of their respective affiliates of any tender or exchange offer involving the Company or any proposal for, or indication of interest in, a merger, consolidation, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or InterTAN Canada, any purchase of a material portion of the assets of the Company and InterTAN Canada taken as a whole, or 15% or more of the Company Common Shares or any of the capital stock of InterTAN Canada, other than the Transactions (an “Acquisition Proposal”);
(ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action knowingly to facilitate any inquiries or proposals the making of any proposal that constitutes, or could be reasonably expected to lead to, an Acquisition Proposal;
(iii) grant any waiver or release under any standstill or similar agreement with respect to any Acquisition Proposal, (ii) engage class of the Company’s equity securities or participate in the capital stock of any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or Subsidiary; or
(iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to on customary terms and entered into in accordance with this Section 6.13conditions) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of Proposal or approve or recommend any Acquisition Proposal or any inquiry agreement, understanding or arrangement relating to any Acquisition Proposal other than in the manner contemplated by this Section 5.3; provided, however, that before the Share Purchase Date and subject to the other provisions of this Section 5.3,
(1) in response to a written Acquisition Proposal, the Company may request clarifications from (but not, in reliance on this subsection (1), enter into negotiations with or furnish nonpublic information to) any third party which could makes such written Acquisition Proposal if such action is taken solely for the purpose of obtaining information reasonably necessary for the Company to ascertain whether such Acquisition Proposal is a Superior Proposal;
(2) the Company may take any action described in clauses (a)(ii) or (a)(iii) of this Section in respect of any person, but only if such person has delivered a written Acquisition Proposal that, in the reasonable, good faith judgment of the Company’s board of directors, is a Superior Proposal and in the reasonable, good faith judgment of the Company’s board of directors, consistent with the advice of its legal counsel, it is advisable to take such action in order to discharge properly its fiduciary duties to the Company’s stockholders; and
(3) the Company may enter into an agreement (other than a confidentiality agreement, which may be expected to lead to entered into as contemplated by clause (a)(iv) of this Section) regarding an Acquisition Proposal, or approve or recommend any Acquisition Proposal, in each case, at any time three business days following Parent’s receipt of written notice from the Company (i) advising Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, identifying the person making such Superior Proposal and specifying the substance thereof financial and other material terms and conditions of such Superior Proposal and (including ii) inviting Parent to propose adjustments in the terms and conditions of and this Agreement with a view to enabling the identity Company to proceed with the transactions contemplated herein on such adjusted terms as a result of the person such adjustments making such inquiry or Acquisition Proposal)transactions at least as favorable to the Company’s stockholders (taking into account all such factors as the board deems relevant) as the Superior Proposal (provided that the Company shall fully cooperate, will provide the other party and cause its legal and financial advisors to cooperate, with an unredacted copy of Parent in making any such Acquisition Proposal adjustments). The Company may not exercise its right to terminate this Agreement under Section 9.1(c)(iii) and any draft agreements, proposals or other materials received in connection may not enter into a binding agreement with any respect to such inquiry or Acquisition Superior Proposal, and will keep unless before or concurrent with such termination, the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments Company shall have paid to Parent the Termination Fee as contemplated by Section 9.3; provided further that nothing contained in this Section 5.3 or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained elsewhere in this Agreement shall prevent a party or its Board the Company’s board of Directors directors from complying with Rule 14d-9 and Rule 14e-2 l4e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by the fiduciary duties of the Company s directors or by applicable law. For purposes of this Agreement, “Superior Proposal” means a bona fide, written Acquisition Proposal not received in violation of Section 5.3(a) that is fully financed (or in the reasonable judgment of the board of directors of the Company, consistent with the advice of its financial advisors, is reasonably capable of being financed) and is on terms that the board of directors of the Company determines reasonably and in good faith, consistent with the advice of its financial advisors, would result in a transaction that, if consummated, would be more favorable from a financial point of view to the Company’s stockholders (taking into account all such factors as the board deems relevant, including, among other things, the identity of the offeror, the likelihood that such transaction will be consummated and all legal, financial, regulatory and other aspects of the proposal) than the Offer (including any adjustment to the terms and conditions as set forth in Section 5.3(a)(3). The S-4 Transactions shall not be deemed a Superior Proposal.
(b) The Company shall cease and cause to be terminated immediately all existing discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal.
(c) The Company shall (i) promptly (and in no event later than two business days after receipt of any Acquisition Proposal or inquiry) notify Parent after receipt by it (or its financial advisors) of any Acquisition Proposal or any inquiries indicating that any person is considering making or wishes to make an Acquisition Proposal; provided, identifying such person, and the financial and other material terms and conditions of any Acquisition Proposal or potential Acquisition Proposal, (ii) promptly notify Parent after receipt of any request for nonpublic information relating to it or any of its Subsidiaries or for access to its or any of its Subsidiaries’ properties, books or records by any person that may reasonably be viewed as considering making, or has made, an Acquisition Proposal, (iii) before furnishing any such rules will in no way eliminate or modify written information, the effect Company shall provide reasonable advance notice to Parent that it intends to do so, (iv) promptly provide Parent with any action pursuant nonpublic information which is given to such rules would otherwise have person under this AgreementSection 5.3(c), and (v) promptly keep Parent advised of the status and the financial and other material terms and conditions of any such Acquisition Proposal, indication or request.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One South State Vote, in the case or Capital OneSouth State, or the Requisite Discover CenterState Vote, in the case of DiscoverCenterState, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover CenterState or Capital OneSouth State, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to South State or CenterState, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (SOUTH STATE Corp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (other than the parties to this Agreement and their Representatives) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Partners Vote, in the case of DiscoverPartners, or the Requisite LINK Vote, in the case of LINK, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.14, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if but only to the extent that, prior to doing so, 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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
Sources: Merger Agreement (LINKBANCORP, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their its Subsidiaries’ respective officers, directors executive officers and employees not todirectors, and will use its reasonable best efforts to cause its and its Subsidiaries’ respective employees, agents, advisors and representatives (collectivelycollectively and together with executive officers and directors, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal, except to notify a person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.13 or solely to clarify whether any such inquiry or offer constitutes an Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Global Payments Vote, in the case of DiscoverGlobal Payments, or the Requisite TSYS Vote, in the case of TSYS, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover TSYS or Capital OneGlobal Payments, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party apprised of any related developments, discussions and negotiations on a current basisbasis (but in no event more than once every twenty-four (24) hours), including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Global Payments or TSYS, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their its Subsidiaries’ respective officers, directors executive officers and employees not todirectors, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) its Subsidiaries’ respective Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal, except to notify a person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 7.13 or solely to clarify whether any such inquiry or offer constitutes an Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.137.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover SWM Vote, in the case of DiscoverSWM, or the Requisite Neenah Vote, in the case of Neenah, a party Party receives an unsolicited bona fide written Acquisition Proposal that the Board of Directors of such Party determines in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) is, or is reasonably likely to lead to, a Superior Proposal, such party Party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 lawProposal; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party Party will, and will 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 Discover Neenah or Capital OneSWM, as applicable, with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four (24) hours) advise the other party Parties following receipt by such Party of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Parties 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 the other party Parties 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 Acquisition Proposal. Each party Party shall use its reasonable best 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.
(b) Nothing contained in this Agreement shall prevent a party Party 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, 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 (Neenah Inc)
Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, the Company agrees that it will shall not, will and shall cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees the other Company Entities not to, and will shall not authorize and shall use its reasonable best efforts to cause its agentsand their officers and directors, advisors managers or equivalent, and representatives (collectively, “Representatives”) other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate any inquiries inquiry, discussion, offer or proposals with respect request that constitutes, or could reasonably be expected to any lead to, an Acquisition ProposalProposal (an “Inquiry”), (ii) engage or participate in any discussions or negotiations with regarding, or furnish to any person concerning Third Party any non-public information in connection with, or knowingly facilitate in any way any effort by, any Third Party in furtherance of any Acquisition ProposalProposal or Inquiry, (iii) provide any confidential approve or nonpublic information or data torecommend an Acquisition Proposal, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any Acquisition Proposal. Notwithstanding of the foregoing.
(b) Notwithstanding anything to the contrary in this Section 6.5, at any time prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in the event that response to an unsolicited bona fide written Acquisition Proposal by a Third Party made after the date of this Agreement (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the receipt of Company receives from the Requisite Capital One VoteThird Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company Entities that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the case or Capital One, or the Requisite Discover VoteAcquisition Proposal if, in the case of Discovereach of clauses (i) and (ii), the Company Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a party receives an unsolicited bona fide written Superior Proposal.
(c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company Entities by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Acquisition Proposal, such party mayrequest or Inquiry and the material terms and conditions of any Acquisition Proposals, Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt of , notify Parent orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any inquiry which could Person in accordance with this Section 6.5(c) and keep Parent reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity informed of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy status and material terms of any such Acquisition Proposal and any draft agreementsproposals, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developmentsoffers, discussions and or negotiations on a current basis, including any amendments to by providing a copy of all material documentation or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best 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 thereofmaterial correspondence relating thereto.
(bd) Nothing contained Except as permitted by this Section 6.5(d), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in this Agreement a manner adverse to any Parent Party, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Company Recommendation in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Acquisition Proposal within five (5) Business Days of the request of Parent and/or fail to reaffirm the Company Recommendation within five (5) Business Days of the request of Parent, or such fewer number of days as remains prior to the Company Stockholders Meeting (provided that Parent shall prevent a party or its Board not be permitted to make such request (x) on more than one (1) occasion in respect of Directors from complying with Rule 14d-9 each Acquisition Proposal and Rule 14e-2 under the Exchange Act with (y) on more than one (1) occasion in respect of each material modification to an Acquisition Proposal; provided, if any) (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit any Company Entity to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement (A) at any time prior to obtaining the Company Stockholder Approval, if the Company Board (x) has received an unsolicited bona fide Acquisition Proposal (that did not result from a breach of this Section 6.5) that, in the good faith determination of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the Parent Parties pursuant to Section 6.5(e), and such Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such rules will action would be inconsistent with the directors’ duties under applicable Law, then in no way eliminate or modify such case the effect that any action Company may (i) terminate this Agreement pursuant to such rules would otherwise have under this Agreement.Section 8.1(c)(ii) or
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees officers not to, and will use shall not permit its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.137.10) in connection with or relating to any Acquisition Proposal. Each party will, and will 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 Parent or the Company, as applicable, with respect to any Acquisition Proposal, and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Notwithstanding the foregoingSection 7.10(a), in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Parent Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, Parent receives a party receives an unsolicited bona fide written Acquisition ProposalProposal not solicited in violation of this Section 7.10, such party Parent may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal and Parent’s Representatives if the Board of Directors of such party Parent concludes in good faith, after consulting with such outside advisors as it determines in good faith (after receiving the advice of to be reasonably necessary consistent with its outside counselfiduciary duties, and with respect to financial matters, its financial advisors) that failure to take taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Parent shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms substantially no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willParent, and will cause shall otherwise permit Parent to comply with 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party obligations herein.
(c) Parent will promptly (within twenty-four (24) hours) advise the other party Company following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Company 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 the other party Company apprised of any related material developments, discussions and negotiations on a reasonably current basis, including any amendments (1) amendment or modification to the economic terms thereof or revisions of (2) other material amendment or modification to the terms of such inquiry or Acquisition Proposalthereof. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof. Parent shall not, and shall not permit any of its Subsidiaries or its or their respective Representatives to, enter into any confidentiality agreement subsequent to the date hereof which prohibits Parent from providing to the Company the information required to be provided to the Company pursuant to this Section 7.10(c).
(bd) Nothing contained in this Agreement shall prevent a party the Parent 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
Sources: Merger Agreement (Synnex Corp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (other than the parties to this Agreement and their Representatives) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover FNCB Vote, in the case of DiscoverFNCB, or the Requisite PFIS Vote, in the case of PFIS, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.14, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if but only to the extent that, prior to doing so, the Board of Directors of such party concludes in good faith (after receiving the advice of its outside legal counsel, and with respect to financial matters, its outside 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 likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to (x) enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.
thereof and (by) Nothing contained 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 the parties to this Agreement and their Representatives in their capacity as such) pursuant to any such agreement. As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to PFIS or FNCB, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party. As used in this Agreement, “Superior Proposal” means, with respect to PFIS or FNCB, as applicable, any unsolicited bona fide written offer or proposal made by a third party to consummate an Acquisition Proposal that a party’s Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under determines in good faith (after receiving the Exchange Act advice of its outside legal counsel and, with respect to an financial matters, its outside financial advisors) (x) would, if consummated, result in the acquisition of all, but not less than all, of the issued and outstanding shares of such party’s common stock or all, or substantially all, of the assets of such party; (y) would result in a transaction that, (i) involves consideration to the holders of the shares of such party’s common stock that is, after accounting for payment of the Termination Fee that may be required hereunder, more favorable, from a financial point of view, than the consideration to be paid to the holders of shares of such party’s common stock pursuant to this Agreement, considering, among other things, the nature of the consideration being offered, and any material regulatory approvals or other risks associated with the timing of the proposed transaction beyond, or in addition to, those specifically contemplated hereby, and which proposal is not conditioned upon obtaining financing is, and (ii) is, in light of the other terms of such proposal, more favorable to such party than the Merger and the other transactions contemplated by this Agreement; and (z) is reasonably likely to be completed on the terms proposed, in each case, taking into account all legal, financial, regulatory and other aspects of the 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) Each party Atlantic Capital will, and will 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 South State with respect to any Acquisition Proposal. Atlantic Capital agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.14(a)), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.14(a)) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Atlantic Capital One Vote, in the case or Atlantic Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.14(a), such party Atlantic Capital may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party Atlantic Capital 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 inconsistent with its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, Atlantic Capital shall have provided such party information to South State and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it Atlantic Capital than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partyAtlantic Capital. Each party will, and will 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 Discover or Atlantic Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party South State following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, Proposal and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party South State 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 the other party South State 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 Acquisition Proposal. Each party Atlantic Capital shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent a mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 Atlantic Capital and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of Atlantic Capital or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors the consolidated assets of Atlantic Capital, (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 Atlantic Capital or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Atlantic Capital, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Atlantic Capital or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Atlantic Capital. As used in this Agreement, “Superior Proposal” shall mean any bona fide written Acquisition Proposal which the board of directors of Atlantic Capital determines, in good faith, after taking into account all legal, financial, regulatory, and other aspects of such proposal (including the amount, form, and timing of payment of consideration, the financing thereof, any associated break-up or termination fees, including those provided for in this Agreement, expense reimbursement provisions, and all conditions to consummation) and the person making the proposal, and after consulting with its financial advisor (which shall be a nationally recognized investment banking firm) and outside legal counsel, is (i) more favorable from complying with Rule 14d-9 a financial point of view to Atlantic Capital’s shareholders than the transactions contemplated by this Agreement (taking into account any proposal by South State to amend the terms of this Agreement pursuant to Section 6.4(b)) and Rule 14e-2 under (ii) reasonably likely to be timely consummated on the Exchange Act with respect to an Acquisition Proposalterms set forth; provided, however, that such rules will for purposes of this definition of Superior Proposal, references to “twenty-five percent (25%)” in no way eliminate or modify the effect definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%).” It is agreed that any action pursuant to such rules would otherwise have under violation of the restrictions on Atlantic Capital set forth in this AgreementSection 6.14(a) by any officer, director, employee, consultant, advisor or other representative of Atlantic Capital or any of its Subsidiaries, in each case acting on behalf of Atlantic Capital or any of its Subsidiaries, shall be a breach of this Section 6.14(a) by Atlantic Capital.
Appears in 1 contract
Sources: Merger Agreement (SOUTH STATE Corp)
Acquisition Proposals. (a) Each party agrees that it will notCompany will, will cause each of its Subsidiaries not to and will cause its Subsidiaries and its and their respective officersemployees, officers and directors and employees not to, to (and will use its reasonable best efforts to cause its agentsand their other Representatives to), advisors immediately cease and representatives cause to be terminated any activities, discussions, or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal.
(collectivelyb) Company shall not, “Representatives”) and shall cause its Subsidiaries and its and their respective employees, officers and directors not to, and shall use its reasonable best efforts to cause its and their other Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except (A) to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.9 or (B) to clarify the terms and conditions of any Acquisition Proposal) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.9) in connection with or relating to any Acquisition ProposalProposal (any such agreement, an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Company Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, Company receives a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a material breach of this Section 6.9(b), such party Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and engage or participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes Company, after consultation with its outside counsel and its financial advisors, 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 actions would be more likely than not to result in a violation of inconsistent with its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Company shall have entered enter into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it Company than the Confidentiality Agreement (provided that such confidentiality agreement need not contain a standstill) (“Acceptable Confidentiality Agreement”), which confidentiality agreement Acceptable Confidentiality Agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willCompany, and will cause its Representatives to, immediately cease and cause Company shall substantially concurrently provide to be terminated Parent any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, with respect such information which was not previously provided to any Acquisition ProposalParent. Each party Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could would reasonably be expected to lead to 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 Acquisition Proposal), will provide the other party Parent 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 the other party Parent apprised of any related material developments, discussions and negotiations related thereto on a reasonably current basis, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. Each party Notwithstanding the foregoing, Company shall use be permitted to waive any standstill provision to allow any person to make an Acquisition Proposal if the Board of Directors of Company, after consultation with its reasonable best efforts outside counsel and its financial advisors, determines in good faith that failure to enforce any existing confidentiality or standstill agreements to which it or any of take such action would be inconsistent with its Subsidiaries is a party in accordance with the terms thereoffiduciary duties under applicable law.
(bc) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 Company and its Subsidiaries or twenty-five percent (25%) or more of the Company Common Stock, (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 the Company Common Stock or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Company or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 the consolidated assets of Company 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 Agreementits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Cowen Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees officers not to, and will use shall not permit its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not their other respective Representatives to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Hexcel Vote, in the case of DiscoverHexcel, or the Requisite Woodward Vote, in the case of Woodward, a party receives an unsolicited a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.13, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal and such person’s Representatives if 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 taking such actions would be more likely than not required to result in a violation of comply with its fiduciary duties under applicable lawLaw; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party, and shall otherwise permit such party to comply with its obligations herein. Each party will, and will 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 Discover Hexcel or Capital OneWoodward, as applicable, with respect to any Acquisition Proposal. , and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement.
(b) Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party apprised of any related material developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition ProposalProposal (other than amendments or revisions that are immaterial in all respects). Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements (other than “standstill” provisions therein) to which it or any of its Subsidiaries is or becomes a party in accordance with the terms thereof.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Hexcel or Woodward, as applicable, other than the Merger, any offer, proposal or inquiry, or any third-party indication of interest, by or on behalf of any third party, relating to (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party (or its affiliates) beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party, which would, in the case of this clause (iii), result in the stockholders of such party prior to such rules would otherwise have under this Agreementtransaction ceasing to own at least seventy-five percent (75%), directly or indirectly, of such party or its applicable Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Woodward, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One IBTX Vote, in the case or Capital OneIBTX, or the Requisite Discover TCBI Vote, in the case of DiscoverTCBI, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover TCBI or Capital OneIBTX, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.terms
Appears in 1 contract
Acquisition Proposals. (a) Each party hereto agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officersdirectors, directors officers and employees not to, and will shall instruct and use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) their other respective Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person Person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) 6.29 in connection with or relating to any Acquisition Proposal). Notwithstanding Each party will, and will 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 Purchaser or the Company, as applicable, with respect to any Acquisition Proposal, and request the return or destruction of any confidential information previously delivered to any such person pursuant to the terms of any confidentiality agreement to the extent provided by such agreement. Without limiting the foregoing, it is agreed that any violation or breach of the restrictions or obligations set forth in this Section 6.29(a) by any Subsidiary of a party or any Representative of such party or any of its Subsidiaries acting on behalf of or at the direction of such party or any of its Subsidiaries shall be deemed to be a breach of this Section 6.29(a) by such party.
(b) Notwithstanding Section 6.29(a), in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One VotePurchaser Stockholder Approval, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, Purchaser receives a party receives an unsolicited bona fide written Acquisition ProposalProposal not solicited in violation (other than de minimis violations) of Section 6.29(a), such party Purchaser may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal and Purchaser’s Representatives if the Purchaser Board of Directors of such party concludes determines in good faith (after receiving consultation with, and taking into account the advice of of, its outside counsel, and with respect to financial matters, its financial advisors) legal counsel that the 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Purchaser shall have entered into a customary confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party willPurchaser, and will cause shall otherwise permit Purchaser to comply with its obligations herein.
(c) Purchaser shall promptly (and in any event within twenty four (24) hours) (i) provide Seller written notice of the receipt by Purchaser of any Acquisition Proposals and the identity of the party making such inquiry or proposal, (ii) disclose to Seller the material terms of any such Acquisition Proposal, including a copy of all documents received in connection therewith (including, for the avoidance of doubt, any form of agreement, letter of intent or agreement in principle in respect of the Acquisition Proposal), (iii) provide or make available to Seller all material information concerning Purchaser or any of its Affiliates provided or made available by Purchaser, its Affiliates or any of its Representatives to, immediately cease to such Person to the extent such written information was not previously provided or made available to Seller and cause to be terminated (iv) keep Seller reasonably informed in all material respects of any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, developments with respect to any such Acquisition Proposal. Each party will promptly Proposal (and any subsequent material amendments or modifications thereto), in each case, as soon as is reasonably practicable and in any event within twenty-four (24) hourshours of receipt, provision or occurrence thereof.
(d) advise Nothing in this Agreement will prohibit the other party following receipt of any Acquisition Proposal Purchaser or the Purchaser Board (or a committee thereof) from (i) taking and disclosing to the Purchaser’s stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen” communication by the Purchaser Board (or a committee thereof) to the Purchaser stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any inquiry which could reasonably be expected substantially similar communication); (ii) complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (iii) informing any Person of the existence of the provisions contained in this Section 6.29; or (iv) making any disclosure to lead to an Acquisition Proposal, and the substance thereof Purchaser stockholders (including regarding the business, financial condition or results of operations of the Purchaser, the Transferred Entities and their respective Affiliates) that the Purchaser Board (or a committee thereof) has determined to make in good faith in order to comply with applicable law, regulation or stock exchange rule or listing agreement, it being understood that any such statement or disclosure made by the Purchaser Board (or a committee thereof) pursuant to this Section 6.29(d) must be subject to the terms and conditions of this Agreement and will not limit or otherwise affect the obligations of the Purchaser or the Purchaser Board (or any committee thereof) under this Section 6.29, it being understood that nothing in the foregoing will be deemed to permit the Purchaser or the Purchaser Board (or a committee thereof) to effect a Recommendation Change other than in accordance with Section 6.28. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Purchaser or the Purchaser Board (or a committee thereof) that describes the Company’s receipt of an Acquisition Proposal, the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy material terms 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 the other party apprised operation of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained in this Agreement shall prevent with respect thereto will not be deemed to be (A) a party withholding, withdrawal, amendment, or its modification, or proposal by the Purchaser Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under (or a committee thereof) to withhold, withdraw, amend or modify, the Exchange Act Purchaser Board Recommendation; (B) an adoption, approval or recommendation with respect to an such 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(C) a Recommendation Change.
Appears in 1 contract
Sources: Stock Purchase Agreement (Limelight Networks, Inc.)
Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, Glimcher agrees that it will shall not, will and shall cause each of its Subsidiaries not to the other Glimcher Entities and will cause its and their respective officers, officers and directors and employees not to, and will use direct its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate any inquiries inquiry, discussion or proposals with respect offer that constitutes or could reasonably be expected to any lead to an Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with or negotiations regarding, or furnish to any person relating to Third Party any non-public information in connection with, or knowingly facilitate any Third Party in making any Acquisition Proposal or (iviii) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement or other option agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”).
(b) Notwithstanding Section 6.5(a) or anything else in this Agreement to the contrary, at any Acquisition Proposal. Notwithstanding the foregoingtime prior to obtaining Glimcher Shareholder Approval, Glimcher or any Glimcher Entity may, directly or indirectly through any Representative, in the event that after the date of this Agreement and prior response to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition ProposalProposal by a Third Party made after the date of this Agreement, (i) furnish non-public information to such party mayThird Party making an Acquisition Proposal and its Representatives (provided, however, that (A) prior to so furnishing such information, Glimcher receives from the Third Party an executed Acceptable Confidentiality Agreement, and may permit its Subsidiaries (B) any non-public information concerning the Glimcher Entities that is provided to such Third Party shall, to the extent not previously provided to the WPG Parties, be provided to the WPG Parties prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party and its Representatives with respect to the Acquisition Proposal if, in the case of each of clauses (i) and (ii), the Glimcher Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or could reasonably be likely to result in, a Superior Proposal.
(c) Glimcher shall notify WPG promptly (but in no event later than twenty-four (24) hours) after receipt by an officer of Glimcher or trustee on the Glimcher Board of any Acquisition Proposal or any inquiry from any Person seeking to have discussions or negotiations with any Glimcher Entity or any of its Subsidiaries’ Representatives torelating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with shall indicate the person identity of the Third Party making the Acquisition Proposal or such inquiry and the material terms and conditions of any such Acquisition Proposals or inquiries (including a copy thereof if in writing and any drafts and final versions of agreements related thereto (which documentation may be redacted to the Board extent necessary to protect confidential information of Directors the business or operations 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person Person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement or inquiry)). Glimcher shall not provide such person with any exclusive right to negotiate with such party. Each party willalso promptly, and will cause its Representatives to, immediately cease and cause to be terminated in any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt , notify WPG orally and in writing, if any Glimcher Entity or any of its Representatives enters into discussions or negotiations concerning any Acquisition Proposal or provides non-public information or data to any inquiry Person in accordance with Section 6.5(b) and keep WPG reasonably informed of the status and material terms of any such Acquisition Proposals on a reasonably current basis, including by providing a copy of all drafts and final versions of agreements relating thereto (which may be redacted to the extent necessary to protect confidential information of the business or operations of the Person making such Acquisition Proposal).
(d) Except as permitted by this Section 6.5(d), neither the Glimcher Board nor any committee thereof shall (i) withhold, withdraw or modify (or publicly propose to withhold, withdraw or modify), in a manner adverse to any WPG Party, the Glimcher Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Glimcher Recommendation in the Proxy Statement, (iv) fail to publicly recommend against any Acquisition Proposal, or fail to publicly reaffirm the Glimcher Recommendation, in each case, within ten (10) Business Days after the written request of WPG following an Acquisition Proposal that has been publicly announced (or such fewer number of days as remains prior to the Glimcher Shareholder Meeting, as it may be adjourned or postponed) (any of the actions described in clauses (i), (ii), (iii) or (iv) of this Section 6.5(d), an “Adverse Recommendation Change”). Notwithstanding anything to the contrary set forth in this Agreement (A) at any time prior to obtaining the Glimcher Shareholder Approval, if the Glimcher Board (x) has received an unsolicited bona fide Acquisition Proposal that was not solicited in breach of this Section 6.5 and that, in the good-faith determination of the Glimcher Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the WPG Parties pursuant to Section 6.5(e) and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action could reasonably be expected to lead be inconsistent with the trustees’ duties under applicable Law, then in such case Glimcher may (i) terminate this Agreement pursuant to Section 8.1(c)(ii) or (ii) make an Adverse Recommendation Change, and, in the case of a termination, Glimcher may immediately prior to or concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; or (B) other than in response to an Acquisition Proposal, if the Glimcher Board determines in good faith, after consultation with outside legal counsel, that failure to take such action could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law, Glimcher may make an Adverse Recommendation Change.
(e) The Glimcher Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.5(d) or terminate this Agreement pursuant to Section 8.1(c)(ii) unless (i) Glimcher has provided a written notice (a “Notice of Adverse Recommendation Change”) to the WPG Parties that the Glimcher Board intends to take such action, specifying in reasonable detail the reasons therefor and, in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), describing the material terms and conditions of, and attaching a complete copy of, the substance thereof Superior Proposal that is the basis of such action (including it being understood that such material terms shall include the identity of the Third Party, but which documentation may be redacted to the extent necessary to protect confidential information of the business or operations of the Person making such Superior Proposal), (ii) during the 72-hour period following the WPG Parties’ receipt of the Notice of Adverse Recommendation Change (the “Negotiation Period”), Glimcher shall, and shall cause its Representatives to, negotiate with the WPG Parties in good faith (to the extent the WPG Parties request to negotiate) to make such adjustments in the terms and conditions of this Agreement to obviate the need to make such Adverse Recommendation Change or terminate this Agreement, and (iii) following the identity end of such 72-hour period, the person making such inquiry Glimcher Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by the WPG Parties in response to the Notice of Adverse Recommendation Change or Acquisition Proposalotherwise, (x) that in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), will provide the other party with an unredacted copy Superior Proposal giving rise to the Notice of any such Acquisition Proposal and any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Adverse Recommendation Change continues to constitute a Superior Proposal, and will keep (y) in the other party apprised case of any related developmentsan Adverse Recommendation Change pursuant to Section 6.5(d)(B), discussions and negotiations on a current basisafter consultation with outside legal counsel, including any amendments that failure to or revisions of take such action could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law. Any material change to the terms of such inquiry Superior Proposal, including any change to the financial terms, shall require a new Notice of Adverse Recommendation Change and the provisions of this Section 6.5(e) shall apply one additional time to such Superior Proposal; provided, however, that in connection with the second Negotiation Period, if any, references to 72-hours above shall be deemed to be references to 48-hours instead. In no event will there be more than two (2) Negotiation Periods and Glimcher will not be required to deliver more than two (2) Notices of Adverse Recommendation Change or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or comply with any of its Subsidiaries is a party in accordance with the terms thereofother provisions of this Section 6.5(e) that would have otherwise been applicable had Glimcher delivered additional Notices of Adverse Recommendation Change.
(bf) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prevent a party prohibit Glimcher or the Glimcher Board, directly or indirectly through its Board of Directors Representatives, from (i) complying with Rule 14d-9 and Rule 14e-2 its disclosure obligations under the Exchange Act applicable Law with respect to an Acquisition Proposal, including taking and disclosing to Glimcher’s shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its shareholders if the Glimcher Board has determined, after consultation with outside legal counsel, that the failure to do so could reasonably be expected to be inconsistent with the trustees’ duties under applicable Law or (ii) making a “stop, look and listen” or similar communication to the holders of Glimcher Common Shares of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, that such rules will in no way eliminate or modify however, the effect that foregoing shall not permit the Glimcher Board to make any action pursuant to such rules would otherwise have under Adverse Recommendation Change except as permitted by Section 6.5(d) and Section 6.5(e).
(g) Upon execution of this Agreement, Glimcher shall, and shall cause each of the other Glimcher Entities, and its and their officers and directors and direct its other Representatives to (i) immediately cease any existing discussions, negotiations or communications with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which any Glimcher Entity is a party or of which any Glimcher Entity is a beneficiary. Glimcher shall use reasonable best efforts to cause all Third Parties who have been furnished confidential information regarding any Glimcher Entity in connection with the solicitation of or discussions regarding an Acquisition Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that they are entitled to have such information returned or destroyed).
(h) For purposes of this Agreement:
Appears in 1 contract
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective directors, officers, directors and employees not toemployees, and will use its reasonable best efforts to cause its agents, advisors and representatives (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by it) (all of the foregoing, collectively, “Representatives”) to immediately cease any written or oral discussions, negotiations or communication with any other Parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal, and will enforce any confidentiality or similar agreement relating to any Acquisition Proposal, including by requesting the other Party to promptly return or destroy any confidential information previously furnished by or on behalf of a Party or any Affiliate thereunder and by specifically enforcing the terms thereof in a court of competent jurisdiction. Each Party has cancelled access to any third party which has been granted access to any virtual or other data room maintained by or on behalf of such Party other than CVCY or CWBC, as applicable, and its Representatives.
(b) From the date of this Agreement through the Effective Time, each Party shall not, and shall cause each of its Subsidiaries and their respective Representatives not to, directly or indirectly, indirectly through another Person: BN 79011068v1
(i) initiate, solicit, initiate or knowingly encourage (including by way of knowingly furnishing information or knowingly assistance), or take any other action designed to facilitate or that could reasonably be expected to result in, any inquiries or proposals with respect the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal;
(ii) provide any confidential information or data to any Person relating to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, ;
(iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to or negotiations regarding any Acquisition Proposal or Proposal;
(iv) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligations of any Person other than CVCY or CWBC, as applicable, or their respective Affiliates;
(v) unless this Agreement has been terminated in accordance with its terms, approve or recommend, propose to approve or recommend, or execute or enter into into, any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition merger agreement, merger asset purchase agreement or share exchange agreement, option agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) related to any Acquisition Proposal or propose to do any of the foregoing; or
(vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal.
(c) Each Party agrees that it will promptly (and, in any event, within 24 hours) notify the other than a confidentiality agreement referred Party if any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, such Party or any of its Subsidiaries and entered into in accordance with this Section 6.13) their respective Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or relating to offers (including, if applicable, copies of any Acquisition Proposal. written requests, proposals or offers, including proposed agreements) and thereafter shall keep the other Party informed, on a current basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in such Party’s intentions as previously notified.
(d) Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party CWBC receives an unsolicited bona fide written Acquisition Proposal relating to CWBC or any Affiliate or any of its Subsidiaries before the Requisite Shareholder Approval is obtained, and CWBC’s board of directors reasonably concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, CWBC may provide such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to the Person making such Superior Proposal and participate take any action described in such negotiations or discussions with this Section 6.7(d) to the person making the Acquisition Proposal if the Board extent that its board of Directors of such party directors 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 be more likely than not be detrimental to result in a violation the best interests of its fiduciary duties under applicable law; provided, that, prior CWBC’s shareholders. Prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe Person making such Superior Proposal, such party CWBC shall have entered into a confidentiality agreement with the person making such Acquisition Proposal third Party on terms no less favorable to it CWBC than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party CWBC will promptly (within twenty-four (24) hours) advise the other party CVCY following receipt of any Acquisition Superior Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and of the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Superior Proposal), will provide the other party 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 the other party CVCY apprised of any related developments, discussions and negotiations (including the terms and conditions of the Superior Proposal) on a current basis. BN 79011068v1
(e) Neither CWBC nor its Subsidiaries nor their respective boards of directors shall (i) endorse or recommend a Superior Proposal, including any amendments (ii) modify or amend in a manner adverse to CVCY or revisions withdraw its recommendation that the shareholders of CWBC vote in favor of the terms approval and adoption of this Agreement, the Merger and the Bank Merger and the transactions contemplated by this Agreement, or (iii) take any other action or make any other public statement in connection with the CWBC Shareholders Meeting inconsistent with such inquiry recommendation ((i), (iii) or (iii) being referred to as a “Change in Recommendation”). Notwithstanding the foregoing, CWBC and its Subsidiaries and their respective boards of directors shall be permitted to effect Change in Recommendation if and only to the extent that: (i) CWBC shall have complied in all respects with this Section 6.7 and Section 6.8; (ii) the board of directors of CWBC reasonably determines in good faith, after consultation with its financial adviser and its outside legal counsel, that failure to take such action would more likely than not be detrimental to the best interests of CWBC shareholders; and (iii) if the board of directors of CWBC intends to effect a Change in Recommendation following an Acquisition Proposal, (A) the board of directors of CWBC shall have concluded in good faith, after giving effect to all of the adjustments which may be offered by CVCY pursuant to clause (C) below, that such Acquisition Proposal constitutes a Superior Proposal, (B) CWBC shall notify CVCY, at least four (4) Business Days in advance, of its intention to effect a Change in Recommendation in response to such Superior Proposal (including the identity of the Person making such Acquisition Proposal) and furnish to CVCY a copy of the relevant unredacted proposed transaction agreements with the Person making such Superior Proposal and all other material documents, and (C) prior to effecting such a Change in Recommendation, CWBC shall, during the period following its delivery of the notice referred to in clause (B) above, negotiate with CVCY in good faith for a period of up to four (4) Business Days (to the extent CVCY desires to negotiate) to make such adjustments in the terms and condition of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal. Each party Notwithstanding anything to the contrary contained herein, neither CWBC nor its Subsidiaries shall use enter into an agreement providing for an Acquisition Proposal or submit to the vote of its reasonable best efforts shareholders any Acquisition Proposal other than the Merger and the Bank Merger unless this Agreement has been terminated in accordance with its terms.
(f) Notwithstanding Sections 6.7(a), (b), and (c), in the event CVCY receives an unsolicited bona fide Acquisition Proposal relating to enforce CVCY or any existing confidentiality or standstill agreements to which it Affiliate or any of its Subsidiaries before the Requisite Shareholder Approval is obtained, CVCY may provide nonpublic information to the Person making such Acquisition Proposal, provided that prior to providing any nonpublic information to the Person making such Acquisition Proposal, CVCY shall have entered into a party in accordance confidentiality agreement with such third Party on terms no less favorable to CVCY than the Confidentiality Agreement. CVCY will promptly advise CWBC following receipt of any such Acquisition Proposal of the substance thereof (including the identity of the Person making such Acquisition Proposal), and will keep CWBC apprised of any related developments, discussions and negotiations (including the terms thereofand conditions of such Acquisition Proposal) on a current basis.
(bg) Nothing contained Neither CVCY nor its Subsidiaries nor their respective boards of directors shall (i) modify or amend in a manner adverse to CWBC or withdraw its recommendation that the shareholders of CVCY vote in favor of the approval and adoption of this Agreement, the Merger and the transactions contemplated by this Agreement, or (ii) take any other action or make any other public statement in connection with the CVCY Shareholders Meeting inconsistent with such recommendation. Additionally, CVCY shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that would restrict CVCY’s ability to comply with any of the terms of this Agreement on a timely basis, including its ability to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis. CVCY agrees that it shall prevent a party not submit to the vote of its shareholders any Acquisition Proposal or its Board other agreement, or propose BN 79011068v1 to do so unless such Acquisition Proposal or other agreement requires the completion of Directors from complying with Rule 14d-9 the Merger prior to completion of any other Acquisition Proposal or consummation of any other agreement respecting CVCY, and Rule 14e-2 under gives CWBC shareholders acquiring CVCY Common Stock in the Exchange Act with respect to an Merger the same consideration in the Acquisition Proposal; provided, that if completed, at the same time such rules will in no way eliminate or modify consideration is received by the effect other shareholders of CVCY.
(h) Each Party agrees that any action pursuant violation of this Section 6.7 by any Subsidiary or any Affiliate or any Representative of such Party or any of its Subsidiaries shall be deemed a breach of this Section 6.7 by such Party. Each Party acknowledges that this Section 6.7 is a significant inducement for the other Party to enter into this Agreement and the absence of such rules provision would otherwise have under resulted in either (i) a material change in the consideration to be paid in the Mergers, or (ii) a failure to induce the other Party to enter into this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Central Valley Community Bancorp)
Acquisition Proposals. (a) Each party Until this Agreement has been terminated in accordance with Section 8.1, each Party agrees that it will not, will cause each of its Subsidiaries not to and will cause its controlled Affiliates and its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) (A) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposalto, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iiiC) provide any confidential or nonpublic information or data toto or (D) have, or have engage or participate in in, any discussions with any person Person relating to, any Acquisition Proposal, (ii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which such Party is a party or under which such Party has any rights with respect to the sale or transfer of the voting securities or any material portion of the assets of such Party, (iii) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to the other Party the recommendation by such Party’s Board of Directors of this Agreement to its stockholders or take any action or make any statement in connection with such Party’s meeting of stockholders inconsistent with such recommendation, including any action to approve, recommend or endorse, or to propose to approve, recommend or endorse, any Acquisition Proposal (collectively, a “Change in Recommendation”), or (iv) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Acquisition Proposal or requiring such Party to abandon, terminate or fail to consummate any of the transactions contemplated hereby, including the Merger.
(ivb) unless Notwithstanding Section 6.13(a), prior to approval of the transactions contemplated by this Agreement has been terminated in accordance with at its terms, approve or enter into any term sheet, letter meeting of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred stockholders to and entered into in accordance with this be held pursuant to Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover6.3, a party receives an unsolicited bona fide written Acquisition Proposal, such party Party (the “Acting Party”) may, and may permit its Subsidiaries Affiliates and its and its Subsidiaries’ Representatives totheir appropriate officers, directors agents and representatives to furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the with, any Person in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Acting Party after the date of this Agreement and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, and may withdraw, modify or qualify the recommendation by such Party’s Board of Directors of this Agreement to its stockholders in connection therewith, if and so long as (A) none of the Acting Party, any of its controlled Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.13, (B) the Board of Directors of such party the Acting 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 law; provided, that, (C) at least twenty-four (24) hours prior to furnishing any confidential or causing to be furnished nonpublic information permitted to be provided pursuant to this sentenceor data to, and participating in such negotiations or discussions with, such party Person, the Acting Party provides the other Party with written notice of the identity of such Person and of the Acting Party’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such Person, (D) prior to providing any nonpublic information to such Person, the Acting Party shall have entered into a confidentiality and standstill agreement with such Person (a copy of which it shall have provided to the person making such Acquisition Proposal other Party) on terms no less favorable restrictive upon such Person, in any respect, than the terms applicable to it than the other Party under the Confidentiality Agreement, which confidentiality and standstill agreement shall not provide such person Person with any exclusive right to negotiate with the Acting Party or have the effect of preventing the Acting Party from satisfying its obligations under this Agreement, (E) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to such party. Each party willPerson, the Acting Party furnishes such information to the other Party (to the extent such information has not been previously delivered or made available by the Acting Party to the other Party), and will (F) prior to so withdrawing, modifying or qualifying the recommendation by its Board of Directors of this Agreement, the Acting Party gives the other Party five business days' prior written notice of its intention to do so (unless at the time such notice is otherwise required to be given there are less than five business days prior to the Acting Party’s stockholders meeting, in which case the Acting Party shall provide as much notice as is reasonably practicable), and during such time, the Acting Party, if requested by the other Party, shall have engaged in good faith negotiations to amend this Agreement (including by making its officers and its financial and legal advisors reasonably available to negotiate) such that the Board of Directors of the Acting Party may continue to recommend the approval of this Agreement.
(c) Each Party shall, and shall cause its Representatives controlled Affiliates and its and their appropriate officers, directors, agents 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 Persons other than Discover Radian or Capital OneMGIC, as applicablethe case dictates, with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four one day) request each Person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring such Party or any portion thereof (24including any of its Subsidiaries) to return all nonpublic information heretofore furnished to such Person by or on behalf of such Party and shall advise the other Party of the particulars of such request. Each Party will (i) promptly (within 24 hours) advise the other party Party following receipt of any request for information, any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of of, and the identity of the person making Person making, such inquiry request, Acquisition Proposal or Acquisition Proposalinquiry), will (ii) promptly (within 24 hours) provide the other party Party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other all written materials received by such Party in connection with any such inquiry or Acquisition Proposalthe foregoing, and will (iii) keep the other party Party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions . Each of the terms of such inquiry or Acquisition Proposal. Each party Parties shall use its reasonable best 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.
(bd) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean any offer, proposal or inquiry relating to, or any indication of interest in, an Alternative Transaction received by a party Party from any Person other than the other Party, in each case, whether or its Board not in writing and whether or not delivered to stockholders of Directors from complying with Rule 14d-9 and Rule 14e-2 under such Party generally. As used in this Agreement, an “Alternative Transaction” means any of (i) a transaction (or series of related transactions) pursuant to which any Person (or group of Persons), directly or indirectly, acquires or would acquire beneficial ownership of more than 15% of the Exchange Act outstanding shares of a Party’s common stock or outstanding voting power or of any new series or new class of preferred stock that would be entitled to a class or series vote with respect to an Acquisition Proposal; providedthe Merger or that would be entitled to more than 15% of the fair market value of the outstanding equity interests of such Party, that whether from such rules will in no way eliminate Party or modify the effect that any action pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, business combination, consolidation, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving a Party or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X promulgated by the SEC), (iii) any transaction (or series of related transactions) pursuant to which any Person (or group of Persons) acquires or would acquire control of assets (including for this purpose the outstanding equity securities of Subsidiaries of such rules would otherwise have under this AgreementParty and securities of the entity surviving any merger or business combination including any of its Subsidiaries) of such Party, or any of its Subsidiaries representing more than 15% of the fair market value of all the assets, net revenues or net income of such Party and its Subsidiaries, taken as a whole, immediately prior to such transaction (or series of related transactions), or (iv) any other consolidation, business combination, recapitalization or similar transaction (or series of related transactions) involving a Party or any of its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Radian Group Inc)
Acquisition Proposals. (a) Each party The Company agrees that that, except as expressly contemplated by this Agreement, neither it will not, will cause each nor any of its Subsidiaries shall, and shall instruct their respective officers or directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 the making of any Acquisition Proposal, Proposal (as hereinafter defined) or (ii) except as permitted below, engage in negotiations or participate in discussions with, or furnish any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic non-public 35 44 information or data to, or have or participate in any discussions with any person third party relating to any an Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with the transactions contemplated by this Section 6.13) in connection with or relating to any Acquisition ProposalAgreement). Notwithstanding anything to the foregoingcontrary contained in this Agreement, in the event that after the date of this Agreement and prior to until the receipt of the Requisite Capital One Required Vote, and subject to the provisions of Section 5.2(b) and (c), the Company and the Board (i) may participate in the case negotiations or Capital Onediscussions (including, as a part thereof, making any counterproposal) with or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to any third party pursuant to a confidentiality agreement on terms no less favorable to the Company as the Confidentiality Agreement (as defined hereinafter), if either (A) the Board determines in good faith, after receiving the advice of its financial advisors, that a third party has made a Superior Proposal after the date hereof or an Acquisition Proposal that the Board concludes would be reasonably likely to constitute a Superior Proposal (and such Acquisition Proposal was not solicited by the Company or any affiliate or agent of the Company at the explicit or implicit direction of the Company) or (B) the Board determines in good faith, after consultation with independent counsel, that the failure to participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of or to furnish 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 information or data would be more reasonably likely than not to result in constitute a violation breach of its the Board's fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information (ii) shall be permitted to be provided (X) take and disclose to the holders of the Company Common Stock a position with respect to the Merger or another Acquisition Proposal (including a Superior Proposal), or amend or withdraw such position, if, based on the advice of independent counsel, the Board determines that such action is required pursuant to this sentence, such party shall have entered into a confidentiality agreement Rules 14d-9 and 14e-2 under the Exchange Act and (Y) make disclosure to stockholders as the Board determines after consultation with independent counsel is necessary to comply with the person Board's fiduciary duties under applicable law and (iii) shall be permitted to request from any Person making such an Acquisition Proposal on such information as may be necessary for the Board to inform itself as to the material terms no less favorable to it than of the Confidentiality Acquisition Proposal. Immediately after the execution and delivery of this Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party the Company and its Subsidiaries will, and will cause its Representatives instruct their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, parties conducted heretofore with respect to any possible Acquisition Proposal. Each party The Company agrees that it will take the necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 5.2(a).
(within twenty-four b) In addition to the obligations of the Company set forth in paragraph (24a) hours) above, the Company shall advise Merger Company orally and in writing by the other party following receipt end of the next Business Day, but in no event more than 36 hours after its receipt), of any written request for information or of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of such request or Acquisition Proposal and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such request, or Acquisition Proposal and any draft agreements, proposals or other materials received in connection with determination by the Board that an Acquisition Proposal is a Superior Proposal. The Company will keep Merger Company reasonably informed as to the status and material terms and conditions of any such inquiry request or Acquisition Proposal.
(c) If the Board is entitled to engage in negotiations or discussions with, and will keep or furnish any information or data to, any third party on the terms contemplated in Section 5.2(a), the Board may, prior to the Required Vote, (i) (in addition to any other party apprised right that it may have to withdraw or modify its recommendation in the exercise of any related developmentsits fiduciary duties) withdraw or modify, discussions and negotiations on or propose publicly to withdraw or modify, in a current basismanner adverse to Merger Company, including any amendments to the approval or revisions recommendation by the Board of the terms Merger or this Agreement or the Charter Amendment, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of such inquiry intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. Each party The Board may only take the actions described in clauses (ii) and (iii) of this subparagraph (c) if the Board determines in good faith, after receiving the advice of its financial advisors, that it has received a Superior Proposal and this Agreement has terminated in accordance with the procedures contemplated in Section 7.1(c), including following the expiration of the five Business Day period contemplated therein and the Company having paid any required Termination Fee and Expenses as contemplated therein.
(d) For purposes of this Agreement, "Acquisition Proposal" shall use mean any bona fide proposal for the (i) direct or indirect acquisition or purchase of a business or assets that constitutes 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company and its reasonable best efforts to enforce Subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase of 15% or more of any existing confidentiality class of equity securities or standstill agreements to which it capital stock of the Company or any of its Subsidiaries is whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or (iii) merger, consolidation, restructuring, transfer of assets or other business combination, sale of shares of capital stock, tender offer, exchange offer, recapitalization, stock repurchase program or other similar transaction that if consummated would result in any person or persons beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The term "Superior Proposal" shall mean any bona fide proposal, which was not solicited by the Company or any affiliate or agent of the Company at the explicit or implicit direction of the Company, to enter into an Acquisition Proposal made by a third party on terms and conditions which the Board determines in accordance with its good faith judgment, after receiving the advice of its financial advisors, to be more favorable to the holders of the Company Common Stock from a financial point of view than the transactions contemplated hereby (taking account of all of the terms thereof, including price, likelihood of financing being available and expected timing of consummation).
(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 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
Sources: Agreement and Plan of Merger (Manville Personal Injury Settlement Trust)
Acquisition Proposals. (a) Each party Until this Agreement has been terminated in accordance with Section 8.1, each Party agrees that it will not, will cause each of its Subsidiaries not to and will cause its controlled Affiliates and its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agents, advisors agents and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) (A) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposalto, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iiiC) provide any confidential or nonpublic information or data toto or (D) have, or have engage or participate in in, any discussions with any person Person relating to, any Acquisition Proposal, (ii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which such Party is a party or under which such Party has any rights with respect to the sale or transfer of the voting securities or any material portion of the assets of such Party, (iii) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to the other Party the recommendation by such Party’s Board of Directors of this Agreement to its stockholders or take any action or make any statement in connection with such Party’s meeting of stockholders inconsistent with such recommendation, including any action to approve, recommend or endorse, or to propose to approve, recommend or endorse, any Acquisition Proposal (collectively, a “Change in Recommendation”), or (iv) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Acquisition Proposal or requiring such Party to abandon, terminate or fail to consummate any of the transactions contemplated hereby, including the Merger.
(ivb) unless Notwithstanding Section 6.13(a), prior to approval of the transactions contemplated by this Agreement has been terminated in accordance with at its terms, approve or enter into any term sheet, letter meeting of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred stockholders to and entered into in accordance with this be held pursuant to Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover6.3, a party receives an unsolicited bona fide written Acquisition Proposal, such party Party (the “Acting Party”) may, and may permit its Subsidiaries Affiliates and its and its Subsidiaries’ Representatives totheir appropriate officers, directors agents and representatives to furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the with, any Person in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Acting Party after the date of this Agreement and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, and may withdraw, modify or qualify the recommendation by such Party’s Board of Directors of this Agreement to its stockholders in connection therewith, if and so long as (A) none of the Acting Party, any of its controlled Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.13, (B) the Board of Directors of such party the Acting 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 law; provided, that, (C) at least twenty-four (24) hours prior to furnishing any confidential or causing to be furnished nonpublic information permitted to be provided pursuant to this sentenceor data to, and participating in such negotiations or discussions with, such party Person, the Acting Party provides the other Party with written notice of the identity of such Person and of the Acting Party’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such Person, (D) prior to providing any nonpublic information to such Person, the Acting Party shall have entered into a confidentiality and standstill agreement with such Person (a copy of which it shall have provided to the person making such Acquisition Proposal other Party) on terms no less favorable restrictive upon such Person, in any respect, than the terms applicable to it than the other Party under the Confidentiality Agreement, which confidentiality and standstill agreement shall not provide such person Person with any exclusive right to negotiate with the Acting Party or have the effect of preventing the Acting Party from satisfying its obligations under this Agreement, (E) at least twenty-four (24) hours prior to furnishing or causing to be furnished nonpublic information or data to such party. Each party willPerson, the Acting Party furnishes such information to the other Party (to the extent such information has not been previously delivered or made available by the Acting Party to the other Party), and will (F) prior to so withdrawing, modifying or qualifying the recommendation by its Board of Directors of this Agreement, the Acting Party gives the other Party five business days’ prior written notice of its intention to do so (unless at the time such notice is otherwise required to be given there are less than five business days prior to the Acting Party’s stockholders meeting, in which case the Acting Party shall provide as much notice as is reasonably practicable), and during such time, the Acting Party, if requested by the other Party, shall have engaged in good faith negotiations to amend this Agreement (including by making its officers and its financial and legal advisors reasonably available to negotiate) such that the Board of Directors of the Acting Party may continue to recommend the approval of this Agreement.
(c) Each Party shall, and shall cause its Representatives controlled Affiliates and its and their appropriate officers, directors, agents 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 Persons other than Discover Radian or Capital OneMGIC, as applicablethe case dictates, with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four one day) request each Person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring such Party or any portion thereof (24including any of its Subsidiaries) to return all nonpublic information heretofore furnished to such Person by or on behalf of such Party and shall advise the other Party of the particulars of such request. Each Party will (i) promptly (within 24 hours) advise the other party Party following receipt of any request for information, any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of of, and the identity of the person making Person making, such inquiry request, Acquisition Proposal or Acquisition Proposalinquiry), will (ii) promptly (within 24 hours) provide the other party Party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other all written materials received by such Party in connection with any such inquiry or Acquisition Proposalthe foregoing, and will (iii) keep the other party Party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions . Each of the terms of such inquiry or Acquisition Proposal. Each party Parties shall use its reasonable best 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.
(bd) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean any offer, proposal or inquiry relating to, or any indication of interest in, an Alternative Transaction received by a party Party from any Person other than the other Party, in each case, whether or its Board not in writing and whether or not delivered to stockholders of Directors from complying with Rule 14d-9 and Rule 14e-2 under such Party generally. As used in this Agreement, an “Alternative Transaction” means any of (i) a transaction (or series of related transactions) pursuant to which any Person (or group of Persons), directly or indirectly, acquires or would acquire beneficial ownership of more than 15% of the Exchange Act outstanding shares of a Party’s common stock or outstanding voting power or of any new series or new class of preferred stock that would be entitled to a class or series vote with respect to an Acquisition Proposal; providedthe Merger or that would be entitled to more than 15% of the fair market value of the outstanding equity interests of such Party, that whether from such rules will in no way eliminate Party or modify the effect that any action pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, business combination, consolidation, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving a Party or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X promulgated by the SEC), (iii) any transaction (or series of related transactions) pursuant to which any Person (or group of Persons) acquires or would acquire control of assets (including for this purpose the outstanding equity securities of Subsidiaries of such rules would otherwise have under this AgreementParty and securities of the entity surviving any merger or business combination including any of its Subsidiaries) of such Party, or any of its Subsidiaries representing more than 15% of the fair market value of all the assets, net revenues or net income of such Party and its Subsidiaries, taken as a whole, immediately prior to such transaction (or series of related transactions), or (iv) any other consolidation, business combination, recapitalization or similar transaction (or series of related transactions) involving a Party or any of its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, will cause each of its Subsidiaries not to to, and will cause its and their respective officers, directors and employees not toemployees, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Umpqua Vote, in the case of DiscoverUmpqua, or the Requisite Columbia Vote, in the case of Columbia, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.amendments
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that that, except as expressly contemplated by this Agreement, neither it will not, will cause each nor any of its Subsidiaries shall, and shall instruct their respective officers or directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 the making of any Acquisition Proposal, Proposal (as hereinafter defined) or (ii) except as permitted below, engage in negotiations or participate in discussions with, or furnish any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic non-public information or data to, or have or participate in any discussions with any person third party relating to any an Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with the transactions contemplated by this Section 6.13) in connection with or relating to any Acquisition ProposalAgreement). Notwithstanding anything to the foregoingcontrary contained in this Agreement, in the event that after the date of this Agreement and prior to until the receipt of the Requisite Capital One Required Vote, and subject to the provisions of Section 5.2(b) and (c), the Company and the Board (i) may participate in the case negotiations or Capital Onediscussions (including, as a part thereof, making any counterproposal) with or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to any third party pursuant to a confidentiality agreement on terms no less favorable to the Company as the Confidentiality Agreement (as defined hereinafter), if either (A) the Board determines in good faith, after receiving the advice of its financial advisors, that a third party has made a Superior Proposal after the date hereof or an Acquisition Proposal that the Board concludes would be reasonably likely to constitute a Superior Proposal (and such Acquisition Proposal was not solicited by the Company or any affiliate or agent of the Company at the explicit or implicit direction of the Company) or (B) the Board determines in good faith, after consultation with independent counsel, that the failure to participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of or to furnish 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 information or data would be more reasonably likely than not to result in constitute a violation breach of its the Board's fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information (ii) shall be permitted to be provided (X) take and disclose to the holders of the Company Common Stock a position with respect to the Merger or another Acquisition Proposal (including a Superior Proposal), or amend or withdraw such position, if, based on the advice of independent counsel, the Board determines that such action is required pursuant to this sentence, such party shall have entered into a confidentiality agreement Rules 14d-9 and 14e-2 under the Exchange Act and (Y) make disclosure to stockholders as the Board determines after consultation with independent counsel is necessary to comply with the person Board's fiduciary duties under applicable law and (iii) shall be permitted to request from any Person making such an Acquisition Proposal on such information as may be necessary for the Board to inform itself as to the material terms no less favorable to it than of the Confidentiality Acquisition Proposal. Immediately after the execution and delivery of this Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party the Company and its Subsidiaries will, and will cause its Representatives instruct their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, parties conducted heretofore with respect to any possible Acquisition Proposal. Each party The Company agrees that it will take the necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 5.2(a).
(within twenty-four b) In addition to the obligations of the Company set forth in paragraph (24a) hours) above, the Company shall advise Merger Company orally and in writing by the other party following receipt end of the next Business Day, but in no event more than 36 hours after its receipt), of any written request for information or of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of such request or Acquisition Proposal and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such request, or Acquisition Proposal and any draft agreements, proposals or other materials received in connection with determination by the Board that an Acquisition Proposal is a Superior Proposal. The Company will keep Merger Company reasonably informed as to the status and material terms and conditions of any such inquiry request or Acquisition Proposal.
(c) If the Board is entitled to engage in negotiations or discussions with, and will keep or furnish any information or data to, any third party on the terms contemplated in Section 5.2(a), the Board may, prior to the Required Vote, (i) (in addition to any other party apprised right that it may have to withdraw or modify its recommendation in the exercise of any related developmentsits fiduciary duties) withdraw or modify, discussions and negotiations on or propose publicly to withdraw or modify, in a current basismanner adverse to Merger Company, including any amendments to the approval or revisions recommendation by the Board of the terms Merger or this Agreement or the Charter Amendment, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of such inquiry intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. Each party The Board may only take the actions described in clauses (ii) and (iii) of this subparagraph (c) if the Board determines in good faith, after receiving the advice of its financial advisors, that it has received a Superior Proposal and this Agreement has terminated in accordance with the procedures contemplated in Section 7.1(c), including following the expiration of the five Business Day period contemplated therein and the Company having paid any required Termination Fee and Expenses as contemplated therein.
(d) For purposes of this Agreement, "Acquisition Proposal" shall use mean any bona fide proposal for the (i) direct or indirect acquisition or purchase of a business or assets that constitutes 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company and its reasonable best efforts to enforce Subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase of 15% or more of any existing confidentiality class of equity securities or standstill agreements to which it capital stock of the Company or any of its Subsidiaries is whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or (iii) merger, consolidation, restructuring, transfer of assets or other business combination, sale of shares of capital stock, tender offer, exchange offer, recapitalization, stock repurchase program or other similar transaction that if consummated would result in any person or persons beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The term "Superior Proposal" shall mean any bona fide proposal, which was not solicited by the Company or any affiliate or agent of the Company at the explicit or implicit direction of the Company, to enter into an Acquisition Proposal made by a third party on terms and conditions which the Board determines in accordance with its good faith judgment, after receiving the advice of its financial advisors, to be more favorable to the holders of the Company Common Stock from a financial point of view than the transactions contemplated hereby (taking account of all of the terms thereof, including price, likelihood of financing being available and expected timing of consummation).
(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 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
Sources: Agreement and Plan of Merger (Johns Manville Corp /New/)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (other than the parties to this Agreement and their Representatives) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Partners Vote, in the case of DiscoverPartners, or the Requisite LINK Vote, in the case of LINK, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.14, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if but only to the extent that, prior to doing so, 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 outside 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 likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to (x) enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.
thereof and (by) Nothing contained 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 the parties to this Agreement and their Representatives in their capacity as such) pursuant to any such agreement. As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to LINK or Partners, as applicable, other than the transactions contemplated by this Agreement, as it may be amended from time to time, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party. As used in this Agreement, “Superior Proposal” means, with respect to LINK or Partners, as applicable, any unsolicited bona fide written offer or proposal made by a third party to consummate an Acquisition Proposal that a party’s Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under determines in good faith (after receiving the Exchange Act advice of its outside counsel and, with respect to an financial matters, its outside financial advisors) (x) would, if consummated, result in the acquisition of all, but not less than all, of the issued and outstanding shares of such party’s common stock or all, or substantially all, of the assets of such party; (y) would result in a transaction that (i) involves consideration to the holders of the shares of such party’s common stock that is, after accounting for payment of the Termination Fee that may be required hereunder, more favorable, from a financial point of view, than the consideration to be paid to the holders of shares of such party’s common stock pursuant to this Agreement, considering, among other things, the nature of the consideration being offered, and any material regulatory approvals or other risks associated with the timing of the proposed transaction beyond, or in addition to, those specifically contemplated hereby, and which proposal is not conditioned upon obtaining financing and (ii) is, in light of the other terms of such proposal, more favorable to the stockholders of such party than the Merger and the other transactions contemplated by this Agreement; and (z) is reasonably likely to be completed on the terms proposed, in each case, taking into account all legal, financial, regulatory and other aspects of the 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
Sources: Merger Agreement (Partners Bancorp)
Acquisition Proposals. (a) Each party agrees that it will PB shall not, will cause each nor shall it permit any of its Subsidiaries not to and will cause to, nor shall it or any of its and Subsidiaries authorize or permit any of their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating agreement related to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred (each, an “Acquisition Agreement”), or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt PB Stockholders’ Meeting, and without any breach of the Requisite Capital One Voteterms of this Section 7.5(a), in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party (A) PB receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the PB Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with (B) the person making the Acquisition Proposal if the PB Board of Directors of such party concludes determines in good faith (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 participate in discussions with such actions Person concerning such Acquisition Proposal would be more likely than not to result in a violation of its fiduciary duties under applicable law; providedLaw, that, prior then PB may (x) furnish information (including non-public information) with respect to furnishing PB to any confidential or nonpublic information permitted to be provided such Person pursuant to this sentence, such party shall have entered into a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between NCC and PB dated December 6, 2016 (provided that PB must contemporaneously furnish to NCC all such information furnished to such Person), and (y) participate in negotiations with the person making such Person regarding such Acquisition Proposal on terms no less favorable Proposal.
(b) Except as set forth in Section 10.1(k) below, neither the PB Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to NCC, the approval or recommendation by the PB Board, or such committee, of the Merger or this Agreement; (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iii) authorize or permit PB or any of its Subsidiaries to enter into any Acquisition Agreement.
(c) PB agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause PB shall direct its Representatives and its Subsidiaries’ respective officers, directors, employees, representatives and 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 Discover or Capital One, as applicable, Persons with respect to any Acquisition Proposal. Each party PB agrees that it will notify NCC promptly (and in any event within twenty-four (24) 24 hours) advise the other party following receipt of if, to PB’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, PB, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 Proposaloffers, and will thereafter PB shall keep the other party apprised of any related developmentsNCC informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. PB also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereofSubsidiaries.
(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 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) Each party agrees that it will notNeither Bancorp nor Skylands shall, will cause and each of its Subsidiaries not to and will them shall cause its respective subsidiaries and their respective officers, its and its subsidiaries' officers and directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not solicit or encourage inquiries with respect to, directly or indirectlyengage in negotiations concerning, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data assistance to, or have or participate in any discussions with with, any person relating to to, any Acquisition Proposal tender offer or exchange offer for, or any proposal for the acquisition of a substantial equity interest in, or a substantial portion of the assets or deposits of, such party or any of its significant subsidiaries (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any each an "Acquisition Proposal"). Notwithstanding the foregoing, in the event that after the date each of this Agreement Bancorp and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party Skylands may, and may authorize and permit its Subsidiaries officers, directors, agents, advisors, attorneys, accountants and its and its Subsidiaries’ Representatives affiliates (collectively, "Representatives") to, furnish provide third parties with confidential information, have discussions or cause negotiations with or otherwise facilitate any effort or attempt by such third party to be furnished confidential make or nonpublic information or data and participate in such negotiations or discussions with the person making the implement an Acquisition Proposal not solicited in violation of this Plan if the such party's Board of Directors Directors, after having consulted with and based upon the advice of such party concludes outside counsel, determines in good faith (after receiving 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 to result in could constitute a violation breach of its the fiduciary duties of such party's Board of Directors under applicable law; provided, thatthat such party shall promptly advise the other party following the receipt of any Acquisition Proposal and the material details thereof; and provided, further, that prior to furnishing any delivery of confidential information relating to such party or nonpublic information permitted providing access to be provided pursuant to this sentencesuch party's books, records or properties in connection therewith, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyagreement. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained in this Agreement Section 5.06 shall prevent a party or its prohibit the Board of Directors of either party from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect regard to an Acquisition Proposal; provided, that such rules will in no way eliminate a tender offer or modify the effect that exchange offer. It shall instruct its and its subsidiaries' Representatives to refrain from any action pursuant to such rules would otherwise have under violation of this AgreementSection 5.06.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Mergers (Little Falls Bancorp Inc)
Acquisition Proposals. (a) Each party The Company agrees that that, except as expressly contemplated by this Agreement, neither it will not, will cause each nor any of its Subsidiaries shall, and the Company and its Subsidiaries shall instruct their respective officers or directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 the making of any Acquisition Proposal, Proposal (as hereinafter defined) or (ii) except as permitted below, engage in negotiations or participate in discussions with, or furnish any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic non-public information or data to, or have or participate in any discussions with any person third party relating to any an Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than the transactions contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, until the acceptance for payment of shares of Company Common Stock in the Offer, and subject to the provisions of Section 6.2(b) and (c), the Company and the Board (i) may participate in negotiations or discussions (including, as a confidentiality agreement referred to and entered into in accordance with this Section 6.13part thereof, making any counterproposal) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal to any third party pursuant to a customary confidentiality agreement, if the Board of Directors of such party concludes determines in good faith (faith, after receiving the advice of its outside counselfinancial advisors, that a third party has made after the date hereof a Superior Proposal or an Acquisition Proposal that the Board concludes would be reasonably likely to constitute a Superior Proposal (and such Acquisition Proposal was not solicited by the Company or any director, affiliate or agent of the Company at the explicit or implicit direction of the Company), (ii) shall be permitted to (X) take and disclose to the holders of the Company Common Stock a position with respect to financial mattersthe Merger or another Acquisition Proposal (including a Superior Proposal), its financial advisorsor amend or withdraw such position, if, based on the advice of independent counsel, the Board determines that such action is required pursuant to Rules 14d-9 and 14e-2 under the Exchange Act and (Y) that failure make disclosure to take such actions would be more likely than not stockholders as the Board determines after consultation with independent counsel is necessary to result in a violation of its fiduciary comply with the Board's duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information law and (iii) shall be permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person request from any Person making such an Acquisition Proposal on such information as may be necessary for the Board to inform itself as to the material terms no less favorable to it than of the Confidentiality Acquisition Proposal. Immediately after the execution and delivery of this Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party the Company and its Subsidiaries will, and will cause its Representatives instruct their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover or Capital One, as applicable, parties conducted heretofore with respect to any possible Acquisition Proposal. Each party The Company agrees that it will take the necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.2(a).
(within twenty-four b) In addition to the obligations of the Company set forth in paragraph (24a) hours) above, the Company shall advise Acquisition Subsidiary orally and in writing by the other party following receipt end of the next Business Day, but in no event more than 36 hours after its receipt, of any written request for information or of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of such request or Acquisition Proposal and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such request or Acquisition Proposal and any draft agreements, proposals determination by the Board that an Acquisition Proposal is a Superior Proposal or other materials received in connection with would be reasonably likely to constitute a Superior Proposal. The Company will keep Acquisition Subsidiary reasonably informed as to the status and material terms and conditions of any such inquiry request or Acquisition Proposal.
(c) If the Board is entitled to engage in negotiations or discussions with, or furnish any information or data to, any third party on the terms contemplated in Section 6.2(a), the Board may, prior to the acceptance for payment of shares of Company Common Stock tendered in the Offer, (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Acquisition Subsidiary, the approval or recommendation by the Board of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, a Superior Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to a Superior Proposal. The Board may only take the actions described in clause (iii) of this subparagraph (c) if this Agreement has terminated in accordance with the procedures contemplated in Section 8.1(d), including following the expiration of the five Business Day period contemplated therein and will keep the other party apprised Company having paid any required Termination Fee and Expenses as contemplated therein.
(d) For purposes of this Agreement, "Acquisition Proposal" shall mean any bona fide proposal for the (i) direct or indirect acquisition or purchase of a business or assets that constitutes 15% or more of the net revenues, net income or the assets (based on the fair market value thereof) of the Company and its Subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase of 15% or more of any related developments, discussions and negotiations on a current basis, including any amendments to class of equity securities or revisions capital stock of the terms of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it Company or any of its Subsidiaries is whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or (iii) merger, consolidation, restructuring, transfer of assets or other business combination, sale of shares of capital stock, tender offer, exchange offer, recapitalization, stock repurchase program or other similar transaction that if consummated would result in any person or persons beneficially owning 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The term "Superior Proposal" shall mean any bona fide proposal to the Company, which was not solicited by the Company or any director, affiliate or agent of the Company at the explicit or implicit direction of the Company, to enter into an Acquisition Proposal made by a third party on terms and conditions which the Board determines in accordance with its good faith judgment, after receiving the advice of its financial advisors, to be more favorable to the holders of the Company Common Stock from a financial point of view than the transactions contemplated hereby (taking account of all of the terms thereof, including price, likelihood of financing being obtained and likelihood and expected timing of consummation).
(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 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) Each party Company agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of Company, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.13(a)) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Company Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party Company concludes in good faith (after receiving the advice of its outside counselcounsel and, 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 furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party Company will, and will 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 Discover or Capital One, as applicable, Parent with respect to any Acquisition Proposal. Each party Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party Parent 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 the other party Parent 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 Acquisition Proposal. Each party Company shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent a mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 Company and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of Company or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of Company, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Company or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that consolidated assets of Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the issuance, acquisition or conversion of, or the disposition of, twenty-five percent (25%) or more of any action pursuant to such rules would otherwise have under this Agreementclass of equity or voting securities of Company or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Company.
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that it will not, will cause each of its Subsidiaries not to and will cause its Subsidiaries and its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal Proposal, or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, indication of interest, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11(a)) in connection with or relating to any Acquisition Proposal, except in each case to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a). Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Company Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11(a), such party the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party the Company 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 that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party the Company shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party The Company will, and will 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 Discover or Capital One, as applicable, Parent with respect to any Acquisition Proposal. Each party The Company will promptly (within twenty-four (24) hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof Proposal (including the terms and conditions of of, and the identity of the person making making, such inquiry or Acquisition Proposal), will provide the other party Parent 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 the other party Parent 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 Acquisition Proposal. Each party The Company shall use its reasonable best 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.
(b) Nothing contained in this Agreement shall prevent a party 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, 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.
(c) As used in this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 the Company and its Subsidiaries or 25% or more of any class of equity or voting or nonvoting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the 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 or nonvoting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party of the Wherify Entities and Lightyear Companies agrees that it will shall not, will cause each of directly or indirectly, and shall instruct its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, agents or advisors and or other representatives (collectively, “Representatives”) or consultants not to, directly or indirectly, (i) initiateuntil the Closing or the termination of this Agreement, solicit, knowingly encourage solicit or knowingly facilitate initiate any inquiries proposals or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with offers from any person relating to any Acquisition acquisition, purchase or sale of all or a material amount of the assets of, or any securities of, or any merger, consolidation or business combination with, the Wherify Entities or Lightyear Companies. Notwithstanding the foregoing, each of the Wherify Entities and Lightyear Companies, to the extent required by the fiduciary obligations of its Board of Directors and Managers, respectively, as determined in good faith by such Board of Directors and Managers, respectively, after consultation with outside counsel, in response to a Qualifying Proposal that did not result from a breach by such entity of this Section 10.1, (i) furnish information with respect to it, to the person making such Qualifying Proposal and its representatives pursuant to a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (ii) participate in discussions or negotiations with such person and its representatives regarding such Qualifying Proposal.
(ivb) unless None of the Board of Directors of Wherify Entities or Lightyear Companies, nor any committee thereof, shall, except as set forth in this Section 10.1:
(i) shall withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the other Party the approval or recommendation by such Board of Directors or any committee thereof of this Agreement has been terminated in accordance with its terms, approve or the Merger.
(ii) cause or permit any Lightyear Company or Wherify Entity to enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written an “Alternative Acquisition Agreement”) constituting or oral, binding or non-binding) relating to any Acquisition Proposal (other than a confidentiality agreement referred to and in Section 10.1(a) entered into in accordance with this the circumstances referred to in Section 6.1310.1(a)); or
(iii) in connection with adopt, approve or relating recommend, or propose to adopt, approve or recommend, any Acquisition Proposal. .
(c) Notwithstanding the foregoing:
(i) the Board of Directors of Wherify may, in response to a Superior Proposal that did not result from a breach by Wherify of this Section 10.1, withdraw or modify the event that after recommendation by the date Board of Directors of Wherify or any committee thereof of this Agreement and prior the Merger, if the Board of Directors determines in good faith (after consultation with outside counsel) that such actions are required by its fiduciary obligations, but only after the third business day following receipt by Lightyear of written notice advising it that the Board of Directors of Wherify desires to withdraw or modify the recommendation due to the receipt existence of a Superior Proposal, specifying the Requisite Capital One Votematerial terms and conditions of such Superior Proposal and identifying the entity making such Superior Proposal. Nothing in this Section 10.1 (other than Section 10.1(f)) shall be deemed to limit Wherify’s obligation to call, give notice of, convene and hold the Wherify stockholders meeting, regardless of whether the Board of Directors of Wherify has withdrawn or modified its recommendation of this Agreement and the Merger; and
(ii) the Managers of Lightyear may, in response to a Superior Proposal that did not result from a breach by Lightyear of this Section 10.1, withdraw or modify the case recommendation by the Board of Directors of Lightyear or Capital Oneany committee thereof of this Agreement and the Merger, but only after the third business day following receipt by Wherify of written notice advising it that the Board of Directors of Lightyear desires to withdraw or modify the recommendation due to the existence of a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the entity making such Superior Proposal. Nothing in this Section 10.1 shall be deemed to limit Lightyear’s obligation to call, give notice of, convene and hold the Lightyear Members meeting, regardless of whether the Managers of Lightyear has withdrawn or modified its recommendation of this Agreement and the Merger.
(d) In the event any Wherify Entity or Lightyear Company or any of its respective officers, directors, investment bankers, financial advisors or attorneys attains knowledge of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or the Requisite Discover Voteof any inquiry with respect to, in the case of Discoveror that could reasonably be expected to lead to, a party receives an unsolicited bona fide written any Acquisition Proposal, such party mayshall promptly advise the other party orally, with written confirmation to follow promptly (and in any event within 24 hours), of the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the Person making any such Acquisition Proposal or inquiry. Such party shall not provide any information to or participate in discussions or negotiations with the Person making any Qualifying Proposal until three business days after the date the written notice required above is received. Wherify or Lightyear, as applicable, shall (i) keep the other party fully informed, on a prompt basis (and in any event within 24 hours), of the status and any material change to the terms of any such Acquisition Proposal or inquiry, (ii) provide to the other party as promptly as practicable after receipt or delivery thereof copies of all correspondence and other written material sent or provided from any third party describing the terms of any Acquisition Proposal, and may permit (iii) if a counterproposal is timely made, consider and cause its Subsidiaries financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Qualifying Proposal, the disclosing party shall furnish a copy of such information to the other party hereto.
(e) Nothing contained in this Section 10.1 shall be deemed to prohibit Wherify from taking and disclosing to its Subsidiaries’ Representatives tostockholders a position with respect to a tender offer contemplated by Rule 14e-2(a) promulgated under the Exchange Act if, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if good faith judgment of the Board of Directors of such party concludes in good faith (Wherify, 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 so disclose would be more likely than not to result in a violation of inconsistent with its fiduciary duties obligations under applicable law; provided, however, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, except as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposalset forth in Section 10.1(b), will provide in no event shall the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate of Wherify or any committee thereof withdraw or modify or propose to withdraw or modify, in a manner adverse to Lightyear, the effect that any action pursuant to approval or recommendation by the Wherify or such rules would otherwise have under committee of the Merger or this Agreement.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, indirectly (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, ; (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, ; (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal Proposal; or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Allegiance Vote, in the case of DiscoverAllegiance, or the Requisite CBTX Vote, in the case of CBTX, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.take
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that it will not, will cause each of its Subsidiaries not to and will cause its Subsidiaries and its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning 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 any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to Parent, Parent Bank and entered into their Representatives in accordance with this Section 6.13their capacity as such) in connection with or relating to any Acquisition Proposal. Notwithstanding , except, for purposes of this clause (iv), to notify such person of the foregoingexistence of the provisions of this Section 6.13(a); provided that prior to the date of the Company Meeting, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One VoteCompany receives from any person other than Parent, in the case Parent Bank or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives their respective Representatives an unsolicited bona fide written Acquisition ProposalProposal that did not result from a breach of this Section 6.13, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data to, and participate in such negotiations or in, discussions with the such person making the with respect to such Acquisition Proposal if but only to the extent that, prior to doing so, its 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 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 be more likely than not to result in a violation of its fiduciary duties under applicable lawLaw; provided, further, that, prior to furnishing providing any confidential or nonpublic information or data or participating in any discussions, in each case, permitted to be provided pursuant to this sentencethe foregoing proviso, the Company shall have provided such party information or data to Parent and shall have entered into a confidentiality agreement with the such person making such Acquisition Proposal on terms no less favorable stringent to it such person than the terms of the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such partythe Company or its Representatives. Each party 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 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 Discover or Capital OneParent, Parent Bank and their Representatives in their capacity as applicable, such) with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to Law, to enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal. Each party will promptly .
(c) Promptly (and in any event within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which that could reasonably be expected to lead to an Acquisition Proposal, the Company shall advise Parent of such Acquisition Proposal or inquiry and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy copies of any such written Acquisition Proposal and written summaries of any draft agreements, proposals or other materials received in connection with any such inquiry or material oral communications relating to an Acquisition Proposal), and will keep the other party Parent 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(bd) 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 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.As used herein,
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, will cause each nor any of its Subsidiaries not to and will cause its and nor any of their respective officers, directors and employees not toshall, and will that it shall direct and use its reasonable best efforts to cause its agents, advisors and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it) 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 any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors and employees shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or participate otherwise 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) at any time prior, but not after the Company Meeting is convened, 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 on terms not less restrictive to the other party than those contained in the Confidentiality Agreement; (C) engaging in any negotiations or discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement Person who has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives made an unsolicited bona fide written Acquisition Proposal, ; or (D) recommending such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the Company Board of Directors of such party 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 such action is, in the absence of the foregoing proscriptions, legally required in order for its directors to take such actions would be more likely than not to result in a violation of its comply with their respective fiduciary duties under applicable law; providedLaw and (ii) in each such case referred to in clause (C) or (D) above, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement the Company Board determines in good faith (after consultation with the person making its financial advisor) that such Acquisition Proposal on terms no less favorable to is a Superior Proposal. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected individuals referred to lead to an Acquisition Proposal, and in the substance thereof (including the terms and conditions of and the identity first sentence hereof of the person making such inquiry or Acquisition Proposal)obligations undertaken in this Section 6.06. The Company agrees that it will notify Parent promptly, will provide but in no event later than the other party with an unredacted copy of next succeeding Business Day, if any such Acquisition Proposal and any draft agreementsinquiries, proposals or other materials offers are received in connection with by, any such inquiry information is requested from, or Acquisition Proposalany such discussions or negotiations are sought to be initiated or continued with, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.representatives,
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.9) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.9) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover VoteParent Shareholder Approval, in the case of DiscoverParent, or the Company Stockholder Approval, in the case of the Company, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.such
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notwill, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 the Company, in the case of Parent, or Parent, in the case of the Company, with respect to any Acquisition Proposal.
(b) Each party agrees that it will not, and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.15), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.15) in connection with or relating to any Acquisition Proposal. .
(c) Notwithstanding anything to the foregoingcontrary set forth in Section 6.15(a) and 6.15(b), in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Parent Vote, in the case of DiscoverParent, or the Requisite Company Vote, in the case of the Company, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 outside 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 furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. .
(d) Each party will promptly (and, in any event, within twenty-four (24) hoursone business day after receipt) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(be) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent a party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act mean, (i) with respect to an Acquisition Proposal; providedthe Company, that such rules will in no way eliminate or modify other than the effect that any action pursuant to such rules would otherwise have under transactions contemplated by this Agreement, any third-party offer, proposal or inquiry relating to, or any third-party indication of interest in, (A) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of the Company and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the Company, (B) 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 the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the Company, or (C) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the Company; and (ii) with respect to Parent, other than the transactions contemplated by this Agreement, any third-party offer, proposal or inquiry relating to, or any third-party indication of interest in, transactions described in subclauses (A) through (C) of clause (i) of this sentence, substituting (x) “Parent” for “the Company” thereof and (y) “50%” for “25%” thereof.
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company agrees that neither it will not, will cause each nor any of its Subsidiaries not to and will cause its and nor any of their respective officers, directors and employees not toshall, and will that it shall direct and use its reasonable best efforts to cause its agents, advisors and its Subsidiaries’ agents and representatives (collectivelyincluding any financial advisor, “Representatives”attorney or accountant retained by it) 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 any an Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors and employees shall, and that it shall direct and use its reasonable best efforts to cause its agents and representatives (iiincluding any financial advisor, attorney or accountant retained by it) not to, directly or indirectly, engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or participate otherwise 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) at any time prior, but not after the Company Meeting is convened, 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 on terms not less restrictive to the other party than those contained in the Confidentiality Agreement; (C) engaging in any negotiations or discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement Person who has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives made an unsolicited bona fide written Acquisition Proposal, ; or (D) recommending such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the Company Board of Directors of such party 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 such action is, in the absence of the foregoing proscriptions, legally required in order for its directors to take such actions would be more likely than not to result in a violation of its comply with their respective fiduciary duties under applicable law; providedLaw and (ii) in each such case referred to in clause (C) or (D) above, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement the Company Board determines in good faith (after consultation with the person making its financial advisor) that such Acquisition Proposal on terms no less favorable to is a Superior Proposal. The Company agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, parties conducted heretofore with respect to any Acquisition ProposalProposals. Each party The Company agrees that it will take the necessary steps to promptly (within twenty-four (24) hours) advise inform the other party following receipt individuals referred to in the first sentence hereof of the obligations undertaken in this Section 6.06. The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any 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 an Acquisition Proposalinitiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the substance thereof (including the material terms and conditions of any proposal or offer and the identity of the person making such inquiry or Acquisition Proposal)thereafter shall keep Parent informed, will provide the other party 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 the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. As used in this Agreement, (i) “Acquisition Proposal. Each party shall use its reasonable best efforts ” means (i) any proposal or offer with respect to enforce any existing confidentiality a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or standstill agreements to which it similar transaction involving the Company or any of its Subsidiaries and (ii) any proposal or offer to acquire in any manner, directly or indirectly, 15% or more of the total voting power or of any class of equity securities of the Company or those of any of its Subsidiaries or 15% or more of the consolidated total assets (including, without limitation, equity securities of its Subsidiaries) of the Company, in each case other than the transactions contemplated by this Agreement; and (ii) “Superior Proposal” means an unsolicited bona fide Acquisition Proposal involving more than 50% of the assets (on a consolidated basis) or total voting power of the equity securities of the Company that its board of directors has determined in its good faith judgment is a party reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, and if consummated, would result in a transaction more favorable to the Company’s stockholders from a financial point of view than the transaction contemplated by this Agreement (after taking into account any revisions to the terms thereof.
(bof the transaction contemplated by Section 6.03(c) Nothing contained in of 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 with respect time likely to an be required to consummate such 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. (ai) Each party Subject to Section 5.3(b)(iii), MUSA agrees that neither it will not, will cause each nor any of its Subsidiaries not to subsidiaries nor any of the officers and will directors of it or its subsidiaries shall, and that it shall cause its and their respective officersits subsidiaries' employees, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors agents and representatives (collectivelyincluding any investment banker, “attorney or accountant retained by it or any of its subsidiaries) ("Representatives”") not to, directly or indirectly, (iA) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any to, or the making of, an Acquisition Proposal, (iiB) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, (iii) or provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Authority or other entity of any kind or nature (each, a "Person") relating to, or otherwise facilitate, an Acquisition Proposal, (C) approve or recommend or propose publicly to approve or recommend, any Acquisition Proposal or (ivD) unless this Agreement has been terminated in accordance with its terms, approve or recommend, or determine to approve or recommend, or execute or enter into into, any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, merger option agreement or other similar agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to as contemplated by and entered into in accordance with this Section 6.135.3(b)(iii)) in connection with or propose publicly or agree to do any of the foregoing relating to any Acquisition Proposal. .
(ii) Notwithstanding anything in this Agreement to the foregoingcontrary, nothing contained in this Agreement shall prevent MUSA or the event MUSA Board from complying with its disclosure obligations under Sections 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; provided, however, that after if the date MUSA Board either (A) does not re-affirm the MUSA Board Recommendation in any such disclosure document or communication or (B) subject to the compliance with the other provisions of this Section 5.3(b), withdraws, modifies or qualifies the approval of this Agreement and prior by the MUSA Board or the MUSA Board Recommendation in a manner adverse to Parent in such disclosure documents or communications, then, in either such case, Parent shall have the right to terminate this Agreement to the receipt extent set forth in Section 7.4(a) of this Agreement.
(iii) Notwithstanding anything in this Agreement to the Requisite Capital One Votecontrary, nothing contained in this Agreement shall prevent MUSA or the case or Capital OneMUSA Board from at any time prior to, but not after, the time this Agreement is approved and adopted by the MUSA Stockholders at the MUSA Stockholders Meeting, (A) providing information in response to a request therefor by, or the Requisite Discover Vote, engaging in the case of Discoverany negotiations or discussions with, a party receives Person that has made an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matterssuch Person and Acquisition Proposal, its financial advisorsMUSA has not violated Section 5.3(b)(i)) that failure to take if the MUSA Board receives from such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a Person an executed confidentiality agreement with the person making such Acquisition Proposal on customary terms no less favorable to it MUSA than the Confidentiality Agreement, which confidentiality agreement dated as of February 1, 2005, between MUSA and an affiliate of Parent (the "Confidentiality Agreement"); or (B) recommending such an unsolicited bona fide written Acquisition Proposal to the MUSA Stockholders, if and only to the extent that, (1) in each such case referred to in clause (A) or (B) above, (I) the MUSA Board determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their fiduciary duties under Applicable Laws, and (II) such Acquisition Proposal was not solicited by MUSA, any subsidiary thereof or any officer, director, employee, agent or Representative of any of the foregoing acting on behalf of or at the direction of MUSA or any of its subsidiaries and did not otherwise result from a breach of this Section 5.3(b); (2) in the case of clause (A) above, the MUSA Board determines in good faith after consultation with outside legal counsel and outside financial advisors that it is reasonably likely to result in a Superior Proposal; and (3) in the case of clause (B) above, (I) the MUSA Board determines in good faith that such Acquisition Proposal constitutes a Superior Proposal, (II) Parent shall not provide have received written notice (the "Superior Proposal Notice") of MUSA's intention to take the action referred to in clause (B) at least four business days prior to the taking of such person action by MUSA, and (III) during such four business day period (the "Waiting Period") MUSA and its advisors shall have negotiated in good faith with Parent and Merger Sub to make adjustments in the terms and conditions of this Agreement and the MUSA Board fully considers any exclusive right such adjustment and nonetheless concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal. If the MUSA Board recommends an unsolicited bona fide written Acquisition Proposal pursuant to negotiate clause (B) above, Parent shall be entitled to terminate this Agreement pursuant to Section 7.4(a) of this Agreement.
(iv) Except as permitted by Section 1.6(c) or Section 5.3(b)(iii), neither the MUSA Board nor any committee thereof shall (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the approval of the Agreement, the Merger, any of the transactions contemplated hereby or the MUSA Board Recommendation or take any action or make any statement in connection with the MUSA Stockholders Meeting inconsistent with such partyapproval or MUSA Board Recommendation (collectively, a "Change in the MUSA Board Recommendation"), or (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal. Each party willFor purposes of this Agreement, a Change in the MUSA Board Recommendation shall include any approval or recommendation (or public proposal to approve or recommend) by the MUSA Board of an Acquisition Proposal, or any failure by the MUSA Board to recommend against an Acquisition Proposal in any case where the MUSA Board is required by Applicable Laws to make a recommendation or otherwise make a statement with respect to an Acquisition Proposal, it being agreed that if an Acquisition Proposal has become publicly known, the MUSA Board will make such a statement as promptly as practicable (having had a reasonable opportunity to consider promptly such Acquisition Proposal) in accordance with Applicable Laws, and the failure by MUSA within such reasonable time period to reaffirm the MUSA Board Recommendation shall be deemed to be a Change in the MUSA Board Recommendation.
(v) MUSA agrees that it will 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 Person (other than Discover or Capital One, as applicable, the parties hereto) conducted heretofore with respect to any Acquisition Proposal. Each party MUSA agrees that it will take the necessary steps to promptly (inform the individuals or entities referred to in the first sentence of Section 5.3(b)(i) of the obligations undertaken in this Section 5.3(b). MUSA also agrees promptly, but in any event, within twenty-four (24) hours) advise five days after the other party following receipt date of this Agreement, to request the return or destruction of all information and materials provided prior to the date of this Agreement by it, its subsidiaries or their respective officers, directors, employees, agents or Representatives with respect to the consideration or making of any Acquisition Proposal Proposal.
(vi) From and after the execution of this Agreement, MUSA shall promptly orally notify Parent of any request for information or any inquiry which could reasonably be expected to lead inquiries, proposals or offers relating to an Acquisition Proposal, indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or offer and the substance thereof (including the material terms and conditions of any proposals or offers and the identity MUSA shall provide to Parent written notice of the person making any such inquiry inquiry, proposal or Acquisition Proposal)offer within 24 hours of such event, will provide the other party with an unredacted as well as a copy of any such Acquisition Proposal and request, inquiry, proposal or offer to the extent in writing. MUSA shall keep Parent informed orally on a current basis of the status of any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, including with respect to the status and will keep the other party apprised terms of any related developmentssuch proposal or offer and whether any such proposal or offer has been withdrawn or rejected and MUSA shall provide to Parent prompt written notice of any such developments within 24 hours. MUSA also agrees to provide any information to Parent that it is providing to another Person pursuant to this Section 5.3(b) at the same time it provides such information to such other Person.
(vii) Without limiting the foregoing, discussions and negotiations on a current basis, including it is understood that any amendments to or revisions violation of the terms restrictions set forth in this Section 5.3(b) by any officer, director or (subject to the proviso below) employee of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it MUSA or any of its Subsidiaries subsidiaries or any agent or Representative of MUSA or any of its subsidiaries, whether or not such Person is purporting to act on behalf of MUSA or any of its subsidiaries or otherwise, shall be deemed to be a party breach of this Section 5.3(b) by MUSA; provided, however, that with respect to any such violation by an employee of MUSA or any of its subsidiaries, such violation shall not be deemed to be a breach of this Section 5.3(b) by MUSA unless such violation, directly or indirectly, results in, or is reasonably likely to result in, the submission of an Acquisition Proposal by any Person other than Parent or Merger Sub.
(viii) Notwithstanding anything to the contrary contained herein, this Agreement shall be submitted to the MUSA Stockholders for the purpose of approving and adopting this Agreement and the Merger, regardless of the recommendation or any change in the recommendation of the MUSA Board with respect thereto, unless this Agreement has been validly terminated in accordance with the terms thereofArticle VII.
(bix) Nothing contained in this Agreement shall prevent a party or its Board For purposes 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
Sources: Merger Agreement (Metals Usa Inc)
Acquisition Proposals. (a) Each party From and after the date hereof --------------------- until the termination of this Agreement, Heritage agrees that neither it will not, will cause each nor any of its Subsidiaries not to nor any of the officers and will cause directors of it or its and their respective officers, directors and employees not toSubsidiaries shall, and will that it shall use its reasonable best efforts to cause its agentsand its Subsidiaries' employees, advisors and representatives representatives, agents or affiliates (collectivelyincluding, “Representatives”without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, solicit or knowingly encourage (including by way of furnishing non- public information or knowingly assistance), or facilitate knowingly, any inquiries or proposals with respect to the making of any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data toproposal that constitutes, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 8.1), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its Subsidiaries to take any such action, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide that it shall notify the other party with an unredacted copy of any such Acquisition Proposal orally (within 1 business day) and any draft agreementsin writing (as promptly as practicable, proposals or other materials received but in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms no event later than 2 calendar days) of such inquiry or Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters and, if such inquiry or proposal is in writing, it shall deliver to the other party a party in accordance with the terms thereof.
(b) Nothing copy of such inquiry or proposal promptly; provided, however, that nothing contained in this Agreement Section 4.1 shall prevent a party or its prohibit the Board of Directors of Heritage from:
(i) furnishing information to, or entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide proposal to acquire Heritage pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that:
(A) the Board of Directors receives a written opinion from its independent financial advisor that such proposal may be superior to the Merger from a financial point-of-view to Heritage's stockholders;
(B) the Board of Directors determines in good faith that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law (such proposal that satisfies (A) and (B) being referred to herein as a "Superior Proposal"); and
(C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, it:
(1) provides reasonable notice to SouthBanc to the effect that it is furnishing information to, or entering into discussions or negotiations with, another party; and
(2) receives from such person or entity an executed confidentiality agreement in reasonably customary form;
(ii) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect regard to an Acquisition Proposala tender or exchange offer; provided, or
(iii) failing to make or withdrawing or modifying its recommendation and entering into a Superior Proposal if there exists a Superior Proposal and the Board of Directors determines in good faith that such rules will in no way eliminate or modify action is necessary for the effect that any action pursuant Board of Directors to such rules would otherwise have comply with its fiduciary duties to stockholders under this Agreementapplicable law.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will RBF shall not, will cause each nor shall it permit any of its Subsidiaries not to and will cause to, nor shall it or its and Subsidiaries authorize or permit any of their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating agreement related to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred (each, an “Acquisition Agreement”), or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt RBF Stockholders’ Meeting, and without any breach of the Requisite Capital One Voteterms of this Section 7.5(a), in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party (A) RBF receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the RBF Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with (B) the person making the Acquisition Proposal if the RBF Board of Directors of such party concludes determines in good faith (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 participate in discussions with such actions Person concerning such Acquisition Proposal would be more likely than not to result in a violation of its fiduciary duties under applicable law; providedLaw, that, prior then RBF may (x) furnish information (including non-public information) with respect to furnishing RBF to any confidential or nonpublic information permitted to be provided such Person pursuant to this sentence, such party shall have entered into a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between NCC and RBF dated April 16, 2015 (provided that RBF must contemporaneously furnish to NCC all such information furnished to such Person), and (y) participate in negotiations with the person making such Person regarding such Acquisition Proposal on terms no less favorable Proposal.
(b) Except as set forth in Section 10.1(k) below, neither the RBF Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to NCC, the approval or recommendation by the RBF Board, or such committee, of the Merger or this Agreement; (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iii) authorize or permit RBF or any of its Subsidiaries to enter into any Acquisition Agreement.
(c) RBF agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause RBF shall direct its Representatives and its Subsidiaries’ respective officers, directors, employees, representatives and 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 Discover or Capital One, as applicable, Persons with respect to any Acquisition Proposal. Each party RBF agrees that it will notify NCC promptly (and in any event within twenty-four (24) 24 hours) advise the other party following receipt of if, to RBF’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, RBF, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 Proposaloffers, and will thereafter RBF shall keep the other party apprised of any related developmentsNCC informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. RBF also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereofSubsidiaries.
(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 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) Each party agrees that it will not, will cause each of its Subsidiaries not to to, and will cause its and their respective officers, directors and employees not toemployees, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Umpqua Vote, in the case of DiscoverUmpqua, or the Requisite Columbia Vote, in the case of Columbia, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to Columbia or Umpqua, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notDuring the period beginning on the date of this Agreement and continuing until 12:01 a.m. (EST) on April 16, will cause each of 2007 (the “No-Shop Period Start Date”), the Company and its Subsidiaries not to and will cause its and their respective directors, officers, directors employees, investment bankers, attorneys, accountants and employees not to, and will use its reasonable best efforts to cause its agents, other advisors and or representatives (collectively, “Representatives”) not ), shall have the right to, directly or indirectly, : (i) initiate, solicitsolicit and encourage Acquisition Proposals, including by way of providing access to non-public information to any Person pursuant to an Acceptable Confidentiality Agreement, provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously made available to Parent or Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations.
(b) Except as expressly permitted by this Section 6.2 and except as may relate to any Person, group of related Persons or group that includes any Person (so long as such Person and the other members of such group, if any, who were members of such group immediately prior to the No-Shop Period Start Date constitute at least 50% of the equity financing of such group at all times following the No-Shop Period Start Date and prior to the termination of this Agreement) or group of related Persons from whom the Company has received, after the date hereof and prior to the No-Shop Period Start Date, a written Acquisition Proposal that the board of directors of the Company or any committee thereof determines in good faith is bona fide and could reasonably be expected to result in a Superior Proposal (any such Person or group of related Persons, an “Excluded Party”, provided that any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement at such time as the Acquisition Proposal (as such Acquisition Proposal may be revised during the course of ongoing negotiations, in which event it may temporarily cease to be a Superior Proposal or an Acquisition Proposal that could reasonably be expected to result in a Superior Proposal, so long as such negotiations are ongoing and it subsequently constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal) made by such Person fails to constitute either a Superior Proposal or an Acquisition Proposal that could reasonably be expected to result in a Superior Proposal), the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ other Representatives to, (i) on the No-Shop Period Start Date, immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal; and (ii) from the No-Shop Period Start Date until the Effective Time or if earlier, the termination of this Agreement in accordance with Article VIII, not (A) initiate, solicit or knowingly encourage or knowingly facilitate any inquiries or proposals with respect the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal, or (iiC) otherwise knowingly facilitate any effort or attempt by any Person to make an Acquisition Proposal. No later than the first business day following the No-Shop Period Start Date, the Company shall notify Parent in writing of the number of Excluded Parties, and promptly following the No-Shop Period Start Date shall identify in writing to Parent any Excluded Parties who are reasonably expected to make an Acquisition Proposal after the No-Shop Period Start Date.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b) but subject to the last sentence of this paragraph, at any time following the No-Shop Period Start Date and prior to the time, but not after, the Requisite Company Vote is obtained, the Company may (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal after the date of this Agreement if the Company receives from the Person so requesting such information an executed Acceptable Confidentiality Agreement, provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and that was not previously made available to Parent, Merger Sub or their Representatives; (B) engage or participate in any discussions or negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement Person who has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives made such an unsolicited bona fide written Acquisition Proposal; or (C) after having complied with Section 6.2(e), adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) such party mayan Acquisition Proposal, if and only to the extent that, (x) prior to taking any action described in clause (A), (B) or (C) above, the board of directors of the Company determines in good faith after consultation with outside legal counsel that failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law, and may permit (y) in each such case referred to in clause (A) or (B) above, the board of directors of the Company has determined in good faith based on the information then available and after consultation with its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in financial advisor that such negotiations or discussions with the person making the Acquisition Proposal if either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; and (z) in the Board case referred to in clause (C) above, the board of Directors directors of such party concludes the Company determines 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 be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable is a Superior Proposal. Notwithstanding the foregoing, the parties agree that, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to it than engage in the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, activities described in Section 6.2(a) with respect to any Acquisition Proposal. Each party will promptly (within twentyExcluded Parties, including with respect to any amended proposal submitted by such Excluded Parties following the No-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition ProposalShop Period Start Date, and the substance thereof (including restrictions in this Section 6.2(c) shall not apply with respect thereto, provided that to the terms and conditions extent applicable to an Excluded Party, the provisions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party Section 6.2(e) shall use its reasonable best 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 thereofapply.
(bd) Nothing contained in this Agreement shall prevent a party or its Board For purposes 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
Sources: Merger Agreement (Txu Corp /Tx/)
Acquisition Proposals. (a) Each party agrees that it will not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.9) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.9) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover VoteParent Shareholder Approval, in the case of DiscoverParent, or the Company Stockholder Approval, in the case of the Company, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board board of Directors 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 lawLaw; provided, that, that prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Subsidiaries 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 Discover or Capital One, as applicable, the other party with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could would reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received from or on behalf of the person making such inquiry or Acquisition Proposal in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement shall prevent Agreement, “Acquisition Proposal” means, with respect to a party, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of such party and its Subsidiaries or 25% or more of any class of equity or voting securities of such party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of such party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 25% or more of any class of equity or voting securities of such party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to consolidated assets of such rules would otherwise have under this Agreementparty, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of such party.
Appears in 1 contract
Acquisition Proposals. (a) Each party Seller agrees that it will not, and will cause each of its Seller Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors and representatives (such individuals with respect to either party, collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with (other than any discussions to clarify the terms and conditions of any Acquisition Proposal) with, any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, indication of interest, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Seller Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Seller receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.11, such party Seller may, and may permit its Seller Subsidiaries and its and its Seller Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party Seller concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its outside financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary the duties of the directors of Seller under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Seller shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partySeller. Each party Seller will, and will cause its Seller Subsidiaries 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 Discover or Capital One, as applicable, Buyer with respect to any Acquisition Proposal. Each party Seller will promptly (within twenty-twenty- four (24) hours) advise the other party Buyer following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the general substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposalthereof. Each party Seller shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Seller Subsidiaries is a party in accordance with the terms thereof.
(b) Nothing contained . As used 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 with respect to an Agreement, “Acquisition Proposal; provided, that such rules will in no way eliminate or modify ” means other than the effect that any action pursuant to such rules would otherwise have under transactions contemplated by this Agreement., any offer, proposal or inquiry relating to, or any third party indication of interest in, (A) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of Seller and Seller Subsidiaries or 25% or more of any class of equity or voting securities
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notAt any time prior to obtaining the approval of Company shareholders as provided in Section 4.1 ("Shareholder Approval"), will cause each neither the Company's Board of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not toDirectors nor a special committee thereof may, directly or indirectlyindirectly through advisors, agents or other intermediaries, (i) initiate, solicit, knowingly encourage or intentionally and knowingly facilitate any inquiries with respect to, or proposals the making of, any Acquisition Proposal, or engage in negotiations or discussions with any Third Party that has made an Acquisition Proposal, or (ii) furnish to any Third Party in connection with a potential Acquisition Proposal nonpublic information relating to the Company or any of its Subsidiaries; provided, however, that the Company may provide nonpublic information to a Third Party and may engage in negotiations or discussions with a Third Party in connection with a potential Acquisition Proposal if (1) such Third Party reasonably appears to have, or to have the ability to obtain, adequate funding to effect a Superior Proposal, (2) such Third Party enters into a confidentiality agreement with terms no less favorable to the Company than the Confidentiality Agreement, (3) the Board of Directors determines in good faith after consultation with outside legal counsel and outside financial advisors that the failure to take such action would be reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law and (4) the Company simultaneously provides to Parent (x) copies of such nonpublic information provided to such Third Party and not previously provided to Parent (for avoidance of doubt, it being understood that non-public information provided to such Third Party in a different form or format as such information has been provided to Parent shall be deemed, for purposes of this Section 4.4(a), to have not been previously provided to Parent) and (y) a list of such nonpublic information previously provided to Parent that has been provided to such Third Party. Except as expressly permitted by Section 4.4(b), neither the Company's Board of Directors nor a special committee thereof shall (i) approve or cause or permit the Company or any Company Subsidiary to enter into any letter of intent, agreement in principle, definitive agreement or similar agreement (other than a confidentiality agreement) constituting or relating to, or which is intended to or is reasonably likely to lead to, an Acquisition Proposal (an "Acquisition Agreement"), (ii) approve or recommend, or propose to approve or recommend, any Acquisition Agreement or Acquisition Proposal or (iii) agree or resolve to take actions set forth in clauses (i) or (ii) of this sentence. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors, employees and representatives of the Company and the Company Subsidiaries of the obligation undertaken in the foregoing sentence, and shall promptly request the return or destruction of all information and materials provided to any Third Party prior to the date hereof by the Company, the Company Subsidiaries or any of their representatives with respect to the consideration or making of any Acquisition Proposal.
(b) Notwithstanding the foregoing, if, at any time prior to obtaining Shareholder Approval, the Company receives a Superior Proposal, the Board of Directors or a special committee thereof (or the Company at the direction of the Board of Directors or a special committee thereof) may, during such period, in response to such Superior Proposal, (i) approve or cause the Company to enter into an Acquisition Agreement with respect to such Superior Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalrecommend such Superior Proposal to the Company's shareholders, (iii) provide any confidential withdraw, modify or nonpublic information or data torefrain from making its recommendation of the transactions contemplated by this Agreement, or have or participate in any discussions with any person relating to any Acquisition Proposal or and (iv) unless terminate this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing6.1(h), in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the each case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes determines in good faith (after receiving consultation with outside legal counsel and outside financial advisors that such action or omission to act is necessary in order for the advice of its outside counsel, and Company's directors to comply 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 their respective fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, that the Company shall (x) provide Parent written notice of the Company's receipt of a Superior Proposal (specifying the financial and other material terms and conditions of such party shall have entered into a confidentiality agreement Superior Proposal) together with the person making such Company's intention to execute or enter into an Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition such Superior Proposal (a "Notice of Superior Proposal. Each party will promptly ") at least five (within twenty-four (245) hours) advise Business Days prior to the other party following receipt taking of any Acquisition such actions in subsections (i) through (iv) above (it being understood that any amendment to the price or material terms of a Superior Proposal or any inquiry which could reasonably be expected shall require an additional Notice of Superior Proposal and an additional three (3) Business Day period thereafter to lead to an Acquisition Proposal, the extent permitted under applicable law) and the substance thereof (including Parent has not proposed adjustments in the terms and conditions of this Agreement which would cause the relevant Acquisition Proposal to no longer be a Superior Proposal and the identity of the person making such inquiry (y) pay to Parent prior to or Acquisition Proposal), will provide the other party with an unredacted copy of within two (2) Business Days following any such Acquisition Proposal termination of this Agreement, the Termination Fee and any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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 thereofRothschild Termination Fee.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) Nothing contained of this Section 4.4, the Company promptly, and 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 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.event within twenty-four
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Acquisition Proposals. (a) Each party will, and will 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 the parties hereto with respect to any Acquisition Proposal. Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.14(a)), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.14) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover SouthState Vote, in the case of DiscoverSouthState, or the Requisite IBTX Vote, in the case of IBTX, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.14(a) by such party, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 advisorsadvisor(s)) 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have provided such information to the other party and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it such party than the Confidentiality Agreement (“Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) 24 hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could would reasonably be expected to lead to an Acquisition Proposal, Proposal and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used 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 with respect to an Acquisition Proposal; providedAgreement, 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.“
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Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition ProposalProposal (as defined below), (ii) engage or participate in any negotiations with any person Person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.137.5) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Bridge Bancorp Vote, in the case or Capital OneBridge Bancorp, or the Requisite Discover DCB Vote, in the case of DiscoverDCB, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person Person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person Person making such Acquisition Proposal on terms no less favorable to it such party than the Confidentiality Agreement, which confidentiality agreement shall not provide such person Person with any exclusive right to negotiate with such party. Each party will, and will 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 Person other than Discover DCB or Capital OneBridge Bancorp, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Bridge Bancorp or DCB, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
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Acquisition Proposals. (a) Each party agrees that it will United shall not, will cause each nor shall it permit any of its Subsidiaries not to and will cause to, nor shall it or its and Subsidiaries authorize or permit any of their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its agentsemployees, advisors and representatives (collectively, “Representatives”) not or agents to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or proposals with respect to the making of any proposal which constitutes, any Acquisition Proposal, (ii) engage enter into any letter of intent or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating agreement related to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to and entered into in accordance with this Section 6.13) in connection with facilitate any inquiries or relating the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing; provided, in the event however, that after the date of this Agreement and if, at any time prior to the receipt United Stockholders’ Meeting, and without any breach of the Requisite Capital One Voteterms of this Section 7.5(a), in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party United receives an unsolicited bona fide written Acquisition Proposal from any Person that in the good faith judgment of the United Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, such party may, and United may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, (x) furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and including non-public information) with respect to financial mattersUnited to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between NCC and United dated January 7, its financial advisors2014, and (y) participate in negotiations with such Person regarding such Acquisition Proposal, if the United Board determines in good faith, after consultation with counsel, 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) Except as set forth in Section 10.1(k) below, neither the United Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to NCC, the approval or recommendation by the United Board, or such committee, of the Merger or this Agreement; provided(ii) approve or recommend, thator propose to approve or recommend, prior any Acquisition Proposal; or (iii) authorize or permit United or any of its Subsidiaries to furnishing enter into any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to Agreement.
(c) United agrees that it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party willand its Subsidiaries shall, and will cause United shall direct its Representatives and its Subsidiaries’ respective officers, directors, employees, representatives and 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 Discover or Capital One, as applicable, Persons with respect to any Acquisition Proposal. Each party United agrees that it will notify NCC promptly (within twenty-four (24) but no later than 24 hours) advise the other party following receipt of if, to United’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any inquiry which could reasonably be expected to lead discussions or negotiations relating to an Acquisition ProposalProposal are sought to be initiated or continued with, United, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or taking such action and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 Proposaloffers, and will thereafter United shall keep the other party apprised of any related developmentsNCC informed, discussions and negotiations on a current basis, including any amendments to or revisions of the status and terms of any such inquiry proposals or offers and the status of any such discussions or negotiations. United also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal. Each party shall use its reasonable best efforts Proposal to enforce any existing confidentiality return or standstill agreements destroy all confidential information heretofore furnished to which such Person by or on behalf of it or any of its Subsidiaries is a party in accordance with the terms thereofSubsidiaries.
(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 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.
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Acquisition Proposals. (a) Each party hereto agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly induce, encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve approve, recommend the approval of or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover BYFC Vote, in the case of DiscoverBYFC, or the Requisite CFB Votes, in the case of CFB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.12(a), such party maymay prior to such meeting, but not after, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data (but only if such party shall have provided such information to the other party hereto prior to furnishing it to any such person) and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 advisors) that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it such party than the Confidentiality AgreementAgreement is to BYFC and CFB, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party. Each party will, and will cause its Representatives to, (i) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Discover CFB or Capital OneBYFC, as applicable, with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal. , and (ii) request the prompt return or destruction of all confidential information previously furnished to any person (other than the parties hereto and its Representatives) that has made or indicated an intention to make an Acquisition Proposal.
(b) Each party will promptly (within twenty-four (24) 24 hours) advise the other party following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 (or a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral), and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(bc) Nothing contained As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to BYFC or CFB, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third-party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of a party and its Subsidiaries or 25% or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute more 25% or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning 25% or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute 25% or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the party.
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Acquisition Proposals. (a) Each party Subject to the other provisions of this Section 6.5, during the Interim Period, the Company agrees that it will shall not, will and shall cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees the other Company Entities not to, and will shall not authorize and shall use its reasonable best efforts to cause its agentsand their officers and directors, advisors managers or equivalent, and representatives (collectively, “Representatives”) other Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, solicit, knowingly encourage or knowingly facilitate any inquiries inquiry, discussion, offer or proposals with respect request that constitutes, or could reasonably be expected to any lead to, an Acquisition ProposalProposal (an “Inquiry”), (ii) engage or participate in any discussions or negotiations with regarding, or furnish to any person concerning Third Party any non-public information in connection with, or knowingly facilitate in any way any effort by, any Third Party in furtherance of any Acquisition ProposalProposal or Inquiry, (iii) provide any confidential approve or nonpublic information or data torecommend an Acquisition Proposal, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.5) in connection with providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do any Acquisition Proposal. Notwithstanding of the foregoing.
(b) Notwithstanding anything to the contrary in this Section 6.5, at any time prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in the event that response to an unsolicited bona fide written Acquisition Proposal by a Third Party made after the date of this Agreement (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the receipt of Company receives from the Requisite Capital One VoteThird Party an executed Acceptable Confidentiality Agreement, and (B) any non-public information concerning the Company Entities that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or substantially at the same time that such information is provided to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the case or Capital One, or the Requisite Discover VoteAcquisition Proposal if, in the case of Discovereach of clauses (i) and (ii), the Company Board determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a party receives an unsolicited bona fide written Superior Proposal.
(c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company Entities by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Acquisition Proposal, such party mayrequest or Inquiry and the material terms and conditions of any Acquisition Proposals, Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (event within twenty-four (24) hours) advise the other party following receipt of , notify Parent orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any inquiry which could Person in accordance with this Section 6.5(c) and keep Parent reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity informed of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy status and material terms of any such Acquisition Proposal and any draft agreementsproposals, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developmentsoffers, discussions and or negotiations on a current basis, including by providing a copy of all material documentation or material correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor any amendments committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Company Recommendation in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Acquisition Proposal within five (5) Business Days of the request of Parent and/or fail to reaffirm the Company Recommendation within five (5) Business Days of the request of Parent, or such fewer number of days as remains prior to the Company Stockholders Meeting (provided that Parent shall not be permitted to make such request (x) on more than one (1) occasion in respect of each Acquisition Proposal and (y) on more than one (1) occasion in respect of each material modification to an Acquisition Proposal, if any) (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit any Company Entity to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement (A) at any time prior to obtaining the Company Stockholder Approval, if the Company Board (x) has received an unsolicited bona fide Acquisition Proposal (that did not result from a breach of this Section 6.5) that, in the good faith determination of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the Parent Parties pursuant to Section 6.5(e), and such Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, then in such case the Company may (i) terminate this Agreement pursuant to Section 8.1(c)(ii) or (ii) make an Adverse Recommendation Change, including approving or recommending such Superior Proposal to the Company’s stockholders, and, in the case of a termination, the Company may immediately prior to or revisions concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; or (B) in response to an Intervening Event, if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, the Company may make an Adverse Recommendation Change, provided, that, in the event of any termination by the Company pursuant to Section 8.1(c)(ii) or by Parent pursuant to Section 8.1(d)(ii), as may be applicable, the Company complies with its obligation to pay the Termination Fee pursuant to Section 8.3(a).
(e) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.5(d) or terminate this Agreement pursuant to Section 8.1(c)(ii) unless (i) the Company has provided a written notice (a “Notice of Adverse Recommendation Change”) to the Parent Parties that the Company intends to take such action, specifying in reasonable detail the reasons therefor and, in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party), (ii) during the three (3) Business Day period following the Parent Parties’ receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall cause its Representatives to, negotiate with the Parent Parties in good faith (to the extent the Parent Parties desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change or termination of this Agreement is no longer necessary, and (iii) following the end of the three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by the Parent Parties in response to the Notice of Adverse Recommendation Change or otherwise, (x) that in the case of an Adverse Recommendation Change pursuant to Section 6.5(d)(A), the Superior Proposal giving rise to the Notice of Adverse Recommendation Change continues to constitute a Superior Proposal, and (y) in the case of an Adverse Recommendation Change pursuant to either Section 6.5(d)(A) or Section 6.5(d)(B), after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any material change to the terms of such inquiry Superior Proposal, including any change to the financial terms, and any material change to the facts and circumstances relating to an Intervening Event, as applicable, shall require a new Notice of Adverse Recommendation Change and the provisions of this Section 6.5(e) shall again apply with respect to such Superior Proposal or Acquisition Proposal. Each party shall use its reasonable best 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 thereofIntervening Event, as applicable.
(bf) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prevent prohibit the Company or the Company Board, directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a party position contemplated by Rule 14e-2(a) or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of the Company Recommendation shall be deemed to be an Adverse Recommendation Change.
(g) Upon execution of this Agreement, the Company shall, and shall cause each of the other Company Entities, and its and their officers and directors, managers or equivalent, and other Representatives to (i) immediately cease any existing discussions, negotiations or communications with any Person conducted heretofore with respect to any Acquisition Proposal and (ii) take such action as is necessary to enforce any confidentiality or standstill provisions or provisions of similar effect to which any Company Entity is a party or of which any Company Entity is a beneficiary. The Company shall use reasonable best efforts to cause all Third Parties who have been furnished confidential information regarding any Company Entity in connection with the solicitation of or discussions regarding an Acquisition Proposal; provided, Proposal within the six (6) months prior to the date of this Agreement to promptly return or destroy such information (to the extent that they are entitled to have such rules will in no way eliminate information returned or modify the effect that any action pursuant to such rules would otherwise have under destroyed).
(h) For purposes of this Agreement.:
Appears in 1 contract
Sources: Merger Agreement (American Realty Capital Healthcare Trust Inc)
Acquisition Proposals. (a) Each party agrees that it will notThe Company shall, will cause each of its Subsidiaries not to and will shall cause its officers and their respective officers, directors and employees not todirectors, and will shall use its reasonable best efforts to cause its employees, representatives and agents, advisors and representatives (collectively, “Representatives”) not to, directly to cease immediately any existing discussions or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate negotiations with any inquiries or proposals parties conducted heretofore with respect to any Acquisition Proposal, Third Party Transaction (iias defined in Section 5.3(b) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to hereof). From and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to Agreement, the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries Company and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party willsubsidiaries will not, and will cause their respective officers and directors, and will use their respective reasonable best efforts to cause their respective employees, representatives, including investment bankers, attorneys and accountants, or other agents retained by or acting for the Company or any of its Representatives subsidiaries, not (i) to solicit, directly or through an intermediary, any inquiries with respect 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt making of any Acquisition Proposal (as defined in Section 5.3(b)), or (ii) except as permitted below, to engage in negotiations or discussions with, or furnish any confidential information relating to the Company or any inquiry which could reasonably be expected to lead of its subsidiaries to, any Third Party (as defined in Section 5.3(b)) relating to an Acquisition ProposalProposal (other than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in this Agreement, the Company (and any person referred to above) may furnish information to, and participate in discussions or negotiations with, any Third Party which submits an Acquisition Proposal to the substance thereof (including the terms Company, and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy may waive any provision 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements agreement to which it or any of its Subsidiaries representatives is a party party, if the Company's Board of Directors in accordance its good faith judgment by a majority vote, after consultation with the terms thereof.
(b) Nothing contained Company's outside legal counsel and financial advisor, determines that such Acquisition Proposal constitutes a Superior Offer and that, based as to legal matters upon the advice of outside legal counsel, the failure to furnish such information or participate in this Agreement such discussions or negotiations or waive any provision of any such agreement, could reasonably be expected to result in a breach of their fiduciary duties under applicable law; provided that nothing herein shall in any event prevent a party or its the Company's Board of Directors from complying with Rule 14d-9 taking and Rule disclosing to the Company stockholders a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with respect to an Acquisition Proposalany tender offer or from making such other disclosures to Company stockholders which, based upon the advice of outside legal counsel, the Board in its good faith judgment determines is required by the fiduciary duties of the Board of Directors under applicable law; providedand provided further, that such rules will the Company shall not enter into a definitive written agreement providing for a Third Party Transaction except concurrently with or after the termination of this Agreement in no way eliminate or modify accordance with the effect that any action pursuant terms of this Agreement including, but not limited to, satisfaction of a Company's obligations under Section 7.2 hereof (except with respect to such rules would otherwise have under this Agreement.confidentiality agreements, stand still agreements and other similar agreements to the extent expressly provided herein). The Company shall promptly provide Parent
Appears in 1 contract
Sources: Merger Agreement (FMST Acquisition)
Acquisition Proposals. (a) Each party Party agrees that it will not, will cause each of its Subsidiaries not to and will cause its Subsidiaries and their respective its and its Subsidiaries' officers, directors directors, Representatives and employees not to, and will use its reasonable best efforts to cause its 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 any Acquisition Proposalto, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposalconcerning, or (iii) provide any confidential or nonpublic information or data to, or have have, or engage or participate in in, any discussions with with, any person Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing; provided that, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party either Party receives an unsolicited bona fide written Acquisition ProposalProposal with respect to such Party, such party Party may, and may permit its Subsidiaries and its and its Subsidiaries’ ' Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with to the person making the Acquisition Proposal if extent that the Board of Directors of such party 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, provided further that, prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing proviso, such party it shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and Party will 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 Discover AmSouth or Capital OneRegions, as applicablethe case dictates, with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four (24) hoursone day) advise the other party Party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person Person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party Party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions . Each of the terms of such inquiry or Acquisition Proposal. Each party Parties shall use its reasonable best 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.
(b) Nothing contained in this Agreement shall prevent a party Party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange 1934 Act with respect to an Acquisition Proposal; provided, that such rules Rules will in no way eliminate or modify the effect that any action pursuant to such rules Rules would otherwise have under this Agreement.
Appears in 1 contract
Acquisition Proposals. (a) Each party Atlantic Capital will, and will 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 South State with respect to any Acquisition Proposal. Atlantic Capital agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.14(a)), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.14(a)) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Atlantic Capital One Vote, in the case or Atlantic Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.14(a), such party Atlantic Capital may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.Atlantic
Appears in 1 contract
Sources: Merger Agreement (Atlantic Capital Bancshares, Inc.)
Acquisition Proposals. (a) Each party agrees that it will NON-SOLICITATION
7.1 Subject to sections 7.4, 7.6, 7.8 and 7.9, Pacifica shall not, will and shall cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, employee, agent, representative or advisor:
(ia) solicit, initiate, solicit, invite or knowingly encourage (including by way of providing non-public information or knowingly facilitate entering into any agreement, arrangement or understanding) the initiation of any inquiries or proposals with respect regarding an Acquisition Proposal from any person;
(b) engage in any discussions or negotiations relating to any Acquisition Proposal; or
(c) accept, (ii) engage approve, recommend or participate in any negotiations with any person concerning any Acquisition Proposalenter into an agreement, (iii) provide any confidential arrangement or nonpublic information or data to, or have or participate in any discussions understanding with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to contemplating any Acquisition Proposal. Notwithstanding NOTICE OF ACQUISITION PROPOSAL
7.2 Forthwith, and in any event within one business day, after becoming aware of any of the foregoing, in the event following matters that occur on or after the date of this Agreement Agreement, Pacifica shall notify Norske Canada of:
(a) any written Acquisition Proposal or any other bona fide Acquisition Proposal;
(b) any amendment to any written Acquisition Proposal or any other bona fide Acquisition Proposal; or
(c) any request for non-public information relating to Pacifica or any of its respective Subsidiaries in connection with any Acquisition Proposal required to be notified under section 7.2(a) or (b) or for access to the properties, books or records of Pacifica, or any of its Subsidiaries by any person whom Pacifica or any of its Subsidiaries knows or reasonably believes is considering making, or has made, any Acquisition Proposal required to be notified under section 7.2(a) or (b).
7.3 Notice given under section 7.2 shall include, to the extent known to Pacifica, a description of the material terms and conditions of any proposal and such details of the proposal, amendment, request or contact as Norske Canada may reasonably request, including the identity of the person directly or indirectly making or ultimately directing such proposal, amendment, request or contact. ACQUISITION PROPOSALS
7.4 At any time prior to the receipt time that the Pacifica Shareholders pass the Pacifica Arrangement Resolution, neither section 7.1 nor any other provision of this Agreement shall prevent the Requisite Capital One Voteboard of directors of Pacifica from considering, participating in the case any discussions or Capital Onenegotiations, or the Requisite Discover Vote, entering into a confidentiality agreement pursuant to section 7.6 in the case respect of Discover, a party receives an unsolicited bona fide written Acquisition ProposalProposal that:
(a) did not result from a breach of section 7.1;
(b) relates to the acquisition, such party maydirectly or indirectly, of more than 50% of the book value on a consolidated basis of the total assets of Pacifica or more than 50% of the outstanding Pacifica Shares, whether by merger, amalgamation, arrangement, takeover bid, sale of assets or otherwise; and
(c) the board of directors of Pacifica, after consultation with financial advisors and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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 determines is reasonably likely than not to result in a violation of its fiduciary duties under applicable lawSuperior Proposal; provided, thathowever, that prior to furnishing taking such action, the board of directors of Pacifica has received advice of outside counsel that it is appropriate that the board of directors of Pacifica take such action in order to discharge properly its fiduciary duties.
7.5 From the date of this Agreement, Pacifica shall:
(a) not release any confidential third party from any confidentiality agreement with Pacifica;
(b) promptly request the return or nonpublic destruction of all non-public information permitted provided to be provided pursuant to this sentence, such party shall any third parties who have entered into a confidentiality agreement with Pacifica relating to a potential Acquisition Proposal pursuant to the terms of that confidentiality agreement and shall use all reasonable efforts to ensure that such requests are honoured; and
(c) not release any third party from any standstill agreement to which such third party is a party, unless the third party has made a Superior Proposal.
7.6 If Pacifica receives a request for material non-public information from a person who proposes an unsolicited bona fide written Acquisition Proposal and Pacifica is permitted under section 7.4 to negotiate the terms of that Acquisition Proposal, then Pacifica may, subject to the execution of a confidentiality agreement containing terms no more favourable to the person making such proposing the Acquisition Proposal on terms no less favorable to it than those set out in the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive access to information regarding Pacifica, provided that Pacifica sends a copy of that confidentiality agreement to Norske Canada immediately upon its execution and Norske Canada is provided with a list of or copies of the information provided to the person making an Acquisition Proposal and immediately provided with access to similar information to which that person was provided.
7.7 Subject to Pacifica's right under sections 7.8, 7.9, 8.3(e) and 9.1(a) to negotiate with such party. Each party willconcurrently pay the Norske Canada Break fee, terminate this Agreement and will cause its Representatives accept or recommend a Superior Proposal, if a bona fide Acquisition Proposal is announced, proposed, offered or made, or otherwise disclosed to, immediately cease and cause to be terminated any activities, discussions Pacifica or negotiations conducted before the date of this Agreement with any Pacifica Shareholders by a person other than Discover Norske Canada or Capital One, as applicable, with respect any of its Subsidiaries prior to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any date that the Pacifica Meeting is scheduled to be held and that Acquisition Proposal is not withdrawn or any inquiry which could reasonably be expected to lead to has not expired (or, in the case of an Acquisition ProposalProposal that has been announced or otherwise disclosed to the Pacifica Shareholders, the withdrawal of that Acquisition Proposal has not been announced) at least three business days prior to the date that the Pacifica Meeting is scheduled to be held, then:
(a) Pacifica may, if it so chooses, delay or adjourn the Pacifica Meeting for a period of time sufficient to allow Pacifica to respond to the Acquisition Proposal in the manner contemplated by this article 7; and
(b) if Pacifica has not, three business days prior to the date that the Pacifica Meeting is scheduled to be held, publicly announced that it continues to support the Pacifica Arrangement and continues to recommend that Pacifica Shareholders vote in favour of the substance thereof Pacifica Arrangement Resolution, then Pacifica shall, if requested in writing by Norske Canada prior to the time of the Pacifica Meeting, delay or adjourn the Pacifica Meeting for five business days. This section 7.7 shall apply to the Pacifica Meeting as delayed or adjourned from time to time pursuant to this section 7.7 or for any other reason, provided that the Pacifica Meeting shall in any event be held at least 15 days prior to the Drop Dead Date. SUPERIOR PROPOSALS
7.8 Pacifica may accept, approve, recommend or enter into any agreement, arrangement or understanding in respect of a Superior Proposal if and only if:
(including a) it has provided Norske Canada with a copy of the Superior Proposal document containing all the material terms and conditions of the Superior Proposal and the identity of the person person(s) directly or indirectly making such inquiry or Acquisition ultimately directing the Superior Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.;
(b) Nothing contained five business days (the "NOTICE PERIOD") have elapsed from the later of the date that Norske Canada received notice of the determination to accept, approve, recommend or enter into an agreement or understanding in respect of such Superior Proposal, and the date Norske Canada received a copy of the Superior Proposal document complying with section 7.8(a); and
(c) during the Notice Period, Pacifica provided a reasonable opportunity to Norske Canada to consider, discuss and offer such adjustments to this Agreement as would enable Pacifica to continue to recommend the Pacifica Arrangement to its shareholders on the basis that the Superior Proposal had ceased to be a Superior Proposal.
7.9 During the Notice Period, Norske Canada shall prevent have the right, but not the obligation, to offer to amend the terms of this Agreement. The board of directors of Pacifica shall review any offer by Norske Canada to amend the terms of this Agreement in good faith in order to determine, in its discretion and in the exercise of its fiduciary duties, whether Norske Canada's offer would, upon acceptance by Pacifica, result in the Superior Proposal ceasing to be a party or its Board Superior Proposal. If the board of Directors from complying directors of Pacifica so determines, Pacifica shall enter into an amended agreement with Rule 14d-9 Norske Canada reflecting Norske Canada's amended proposal. If the board of directors of Pacifica determines, in good faith and Rule 14e-2 after consultation with financial advisers and outside counsel, that the Superior Proposal remains a Superior Proposal and therefore rejects Norske Canada's amended proposal, Pacifica may terminate this Agreement pursuant to section 8.3(e), provided however that Pacifica must concurrently pay to Norske Canada the Break Fee, if any, payable to Norske Canada under the Exchange Act section 9.1(a) and must concurrently with termination of this Agreement enter into a definitive agreement with respect to an Acquisition such Superior Proposal; provided. Pacifica acknowledges that the payment of the Break Fee, if any, payable under section 9.1(a) is a condition to valid termination of this Agreement under section 8.3(e) and this section 7.9.
7.10 Pacifica shall ensure that such rules will in no way eliminate its and its Subsidiaries' officers, directors, employees, agents and any financial advisors or modify other advisors or representatives retained by it or its Subsidiaries are aware of the effect that provisions of this article 7, and Pacifica shall be responsible for any action pursuant to such rules would otherwise have under breach of this Agreementarticle 7 by its Subsidiaries (other than the PREI Parties) and its or their financial advisors or other advisors or representatives.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One FIBK Vote, in the case or Capital OneFIBK, or the Requisite Discover GWB Vote, in the case of DiscoverGWB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover GWB or Capital OneFIBK, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.the
Appears in 1 contract
Acquisition Proposals. (a) Each party The Company will, and will 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 Purchaser with respect to any Acquisition Proposal. Subject to Section 6.4(b) and this Section 6.13, the Company agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with with, any person relating to any Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.13(a)), or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.136.13(a)) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Company Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party the Company 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 its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.counsel and
Appears in 1 contract
Sources: Agreement and Plan of Merger (TriState Capital Holdings, Inc.)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One FIBK Vote, in the case or Capital OneFIBK, or the Requisite Discover GWB Vote, in the case of DiscoverGWB, a party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.13(a), such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover GWB or Capital OneFIBK, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to FIBK or GWB, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; providedconsolidated assets of the party, that (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will The Company shall not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, take any action to: (i) initiateencourage (including by way of furnishing nonpublic information), solicit, knowingly encourage initiate or knowingly facilitate any inquiries or proposals with respect to any Acquisition ProposalProposal (as defined below), (ii) engage or participate in enter into any negotiations agreement with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating respect to any Acquisition Proposal or (iviii) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes any way 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before with, or furnish any information to, any Person in connection with, or take any other action to facilitate any inquiries or the date of this Agreement with any person other than Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt making of any Acquisition Proposal proposal that constitutes, or any inquiry which could reasonably be expected to lead to an to, any Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained Notwithstanding anything to the contrary herein, if the Company Board determines in good faith, after consultation with outside counsel, that it is necessary to do so to discharge properly its fiduciary duties to its Stockholders (as such duties would exist in the absence of this Agreement shall prevent Section 5.1), or if so required by any Regulatory Authority, the Company may, in response to an Acquisition Proposal that the Company Board determines in good faith is reasonably likely to result in a party or its Board of Directors from complying Superior Proposal (as defined below), and subject to the Company's compliance with Rule 14d-9 and Rule 14e-2 under the Exchange Act Section 5.1(c), furnish information with respect to the Company and its subsidiaries to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement the terms of which are no more favorable to the other party to such confidentiality agreement than the Confidentiality Agreement (as defined below) and (ii) participate in discussions with respect to such Acquisition Proposal. It is expressly understood and agreed that, with respect to the foregoing proviso, the Company's legal and financial advisors shall be able to make inquiries, and engage in discussions, with any party that has made an Acquisition Proposal (and such party's legal and financial advisors) in order to elicit information to allow the Company Board to determine in good faith if such Acquisition Proposal is reasonably likely to result in a Superior Proposal; provided.
(c) The Company will, as promptly as practicable, communicate to Buyer any inquiry received by it relating to any potential Acquisition Proposal and the material terms of any such proposal or inquiry, including the identity of the Person and its affiliates making the same, that it may receive in respect of any such rules will in no way eliminate transaction, or modify the effect that of any action pursuant such information requested from such Person or of any such negotiations or discussions being sought to be initiated with such rules would otherwise have under this AgreementPerson.
Appears in 1 contract
Sources: Merger Agreement (Bank Plus Corp)
Acquisition Proposals. (a) Each party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, indirectly (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, ; (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, ; (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal Proposal; or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.11(a)) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Allegiance Vote, in the case of DiscoverAllegiance, or the Requisite CBTX Vote, in the case of CBTX, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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; law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover CBTX or Capital OneAllegiance, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(b) Nothing contained . As used in this Agreement Agreement, “Acquisition Proposal” shall prevent mean, with respect to Allegiance or CBTX, as applicable, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry 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 a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Board Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposalconsolidated assets of the party; provided(ii) any tender offer (including a self-tender offer) or exchange offer that, that if consummated, would result in such rules will third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in no way eliminate the aggregate, constitute twenty-five percent (25%) or modify more of the effect that any action pursuant to such rules would otherwise have under this Agreementconsolidated assets of the party; or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.
Appears in 1 contract
Sources: Merger Agreement (CBTX, Inc.)
Acquisition Proposals. (a) Each party Party agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will shall use its reasonable best efforts to cause its and their respective officers, directors, employees, 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal (except to notify a person that has made, or to the knowledge of such party, is making inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.12) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One Parent Vote, in the case or Capital OneParent, or the Requisite Discover Company Vote, in the case of DiscoverCompany, a party Party receives an unsolicited bona fide written Acquisition ProposalProposal that did not result from or arise in connection with a breach of this Section 6.12(a), such party Party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party 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 that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party Party shall have provided such information to the other Party to this Agreement and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such partyParty. Each party Party will, and will cause its Subsidiaries 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 Discover Company or Capital OneParent, as applicable, with respect to any Acquisition Proposal. Each party Party will promptly (within twenty-four (24) hours) advise the other party Party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 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.any
Appears in 1 contract
Sources: Merger Agreement (HomeStreet, Inc.)
Acquisition Proposals. (a) Each party Except as expressly permitted by this Section 6.12, the Company agrees that it will not, and will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not todirectors, and will use its reasonable best efforts to cause its employees, agents, advisors advisors, financing sources, investment bankers, attorneys and other representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) disclose or provide any confidential or nonpublic information or data to, or have or participate in any discussions with (except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.12) or otherwise cooperate in any way with, any person in connection with or relating to any Acquisition Proposal (including by affording access to the personnel, properties, books, records or assets of the Company or its Subsidiaries) or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement agreement, or other agreement (whether written or oral, binding or non-bindingnonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.136.12) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Capital One VoteCompany Vote and subject to compliance with this Section 6.12, in the case or Capital One, or event the Requisite Discover Vote, in the case of Discover, a party Company receives an unsolicited bona fide written Acquisition ProposalProposal after the date of this Agreement that did not result from a breach of this Section 6.12, such party it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the and only if its Board of Directors of such party concludes determines in good faith (after receiving the advice of consultation with its outside counsel, legal counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal and that the failure to take such actions would be more likely than not to result in a violation of its the directors’ fiduciary duties under applicable law; provided, that, that prior to furnishing providing any confidential or nonpublic information permitted to be provided pursuant to this sentencethe foregoing or participating in such negotiations or discussions, such party the Company shall have given Parent at least three (3) business days’ prior written notice and shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 the Company. The Company shall provide Parent with a copy of any confidential or nonpublic information provided to any person pursuant to the prior sentence prior to or simultaneously with furnishing such partyinformation to such person (to the extent not previously provided). Each party The Company will, and will 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 Discover or Capital One, as applicable, Parent with respect to any Acquisition ProposalProposal and will request the return or destruction of any information provided to any such person in connection therewith. Each party The Company will promptly (and within twenty-four (24) 24 hours) advise the other party Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), ) and will provide the other party with Parent an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials or correspondence received in connection with any such inquiry or Acquisition Proposal, and will keep the other party Parent reasonably 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 Acquisition Proposal. Each party The Company shall use its reasonable best 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.
(b) Nothing contained thereof and will not release any third party from, or waive any provisions of, any such agreements. As used in this Agreement Agreement, “Acquisition Proposal” shall prevent a mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets of the Company and its Subsidiaries or 20% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets of the Company, (ii) any tender offer (including a self-tender offer), exchange offer or other acquisition of equity or voting securities that, if consummated, would result in such third party beneficially owning 20% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets of the Company or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries. As used in this Agreement, “Superior Proposal” means an unsolicited, bona fide written Acquisition Proposal made by a third party to acquire, directly or indirectly, pursuant to a tender offer, exchange offer, merger, consolidation or other business combination or acquisition transaction, all or substantially all of the consolidated assets of the Company and its Subsidiaries or all of the outstanding shares of Company Common Stock, and which the Board of Directors of the Company has in good faith determined (after consultation with its outside legal counsel and financial advisors, and taking into account the terms and conditions of such Acquisition Proposal and this Agreement (as it may be proposed to be amended by Parent) and all legal, financial, timing, regulatory and other aspects of such Acquisition Proposal and the person making the proposal), to be more favorable, from complying with Rule 14d-9 a financial point of view, to the Company’s shareholders than the Merger and Rule 14e-2 under the Exchange Act with respect transactions contemplated by this Agreement (as it may be proposed to an Acquisition Proposal; provided, that such rules will in no way eliminate or modify be amended by Parent) and to be reasonably likely to be consummated on a timely basis on the effect that any action pursuant to such rules would otherwise have under this Agreementterms proposed.
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will not, will cause each Notwithstanding any other provision of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its 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 any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its termsto the contrary, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding during the foregoing, in the event that after period beginning on the date of this Agreement and prior to continuing until the receipt Solicitation Period End-Date, the Company and its Representatives shall have the right (acting under the direction of the Requisite Capital One VoteCompany Board) to directly or indirectly: (i) initiate, in the case or Capital Onesolicit and encourage Acquisition Proposals, or the Requisite Discover Vote, in the case including by way of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause providing access to be furnished confidential or nonpublic non-public information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a one or more confidentiality agreement with the person making such Acquisition Proposal agreements on terms no less favorable in the aggregate to it the Company than those contained in the Confidentiality AgreementAgreements and with a standstill of duration no shorter than and with exceptions to such standstill not materially broader than those contained in the Confidentiality Agreement between Francisco Partners II, which confidentiality agreement shall not provide L.P. and the Company, except that any such person with any exclusive right to negotiate with such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise standstill may explicitly permit the other party following receipt of any to submit an Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including Company Board at the terms and conditions of and the identity invitation of the person making such inquiry or Acquisition ProposalCompany Board (“Acceptable Confidentiality Agreements”), will provide the other party 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 the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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.
(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 with respect to an Acquisition Proposal; provided, that the Company shall promptly provide or make available to Parent any non-public information concerning the Company or any Company Subsidiary that is provided or made available to any Person given access which was not previously provided or made available to Parent; and (ii) enter into and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such rules will in no way eliminate discussions or modify the effect that any action pursuant to such rules would otherwise have under negotiations. For purposes of this Agreement., “Acquisition Proposal“ means any proposal or offer (whether or not binding) from any Person or group (other than Parent and its Affiliates) relating to any direct or indirect acquisition or purchase of 15% or more of the assets of the Company and the Company Subsidiaries, taken as a whole, or 15% or more of any class of equity securities of the Company or Company Subsidiary then outstanding, any
Appears in 1 contract
Acquisition Proposals. (a) Each party agrees that it will notFrom and after the date hereof, will cause each no Winton Party, with▇▇▇ ▇he prior written consent of its Subsidiaries not to and will cause its and their respective officersthe REIT, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not towill, directly or indirectly, (i) initiate, solicit, initiate or encourage (including by way of furnishing information) or take any other action to facilitate knowingly encourage or knowingly facilitate any inquiries or the making of any proposals with respect which constitute or may reasonably be expected to result in an Acquisition Proposal from any person, or engage in any discussions or negotiations relating thereto or accept any Acquisition Proposal; provided however, that notwithstanding any other provision hereof, a Transferor or other Winton Party may (▇) ▇▇ any time prior to the Commencement Date 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 Winton Parties af▇▇▇ ▇he date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Winton Parties and ▇▇▇ ▇▇siness, properties, and assets if, and only to the extent that, the general partner of the Transferor determines based on the advice of outside counsel, that such action is necessary for the general partner of the Transferor to act in a manner consistent with his fiduciary duties and/or (ii) engage or participate in provided the Transferor(s) terminate this Combination Agreement under Section 9.3(h) hereof, accept an Acquisition Proposal from a third party. In the event any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to of the Winton Parties sh▇▇▇ ▇eceive any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter inquiry of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement the type referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing6.3, in the event that after the date of this Agreement and prior such Winton Party shall ▇▇▇▇▇tly communicate to the receipt of the Requisite Capital One Vote, in the case or Capital One, or the Requisite Discover Vote, in the case of Discover, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if 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, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party will, and will 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 Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including REIT the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals offer or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best 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 thereofinquiry.
(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 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
Sources: Master Combination and Contribution Agreement (Asr Investments Corp)
Acquisition Proposals. (a) Each party agrees that it will notLPB will, and will cause each of its Subsidiaries not to to, and will cause its and their respective officers, directors and employees representatives (including ▇▇▇▇▇▇▇ ▇▇▇▇▇) 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, LPB shall not terminate, amend, modify or waive any material provision of any confidentiality or similar agreement to which LPB or any of its Subsidiaries is a party (other than any involving Horizon).
(b) Except as permitted in this Section 5.06, LPB 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 LPB’s shareholders, if LPB receives a bona fide Acquisition Proposal that the LPB Board of Directors determines in good faith 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 will use did not otherwise result from a breach of LPB’s obligations under this Section 5.06, LPB may furnish, or cause to be furnished, non-public information with respect to LPB 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 may participate in discussions and negotiations regarding such proposal if (A) the LPB 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 LPB’s shareholders under applicable law and (B) prior to taking such action, LPB has used its reasonable best efforts to cause enter into a confidentiality agreement with such Person containing terms no less favorable to LPB than those contained the Confidentiality Agreement (as defined in Section 11.08) and which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with LPB. 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇) of LPB or its agents, advisors and representatives Subsidiaries shall be a breach of this Section 5.06 by LPB.
(collectively, “Representatives”c) not Neither the LPB Board of Directors nor any committee thereof shall (or shall agree or resolve to, directly or indirectly, ) (i) initiatefail to make, solicitwithdraw 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 LPB Board of Directors or any such committee of this Agreement or the Merger, knowingly encourage or knowingly facilitate any inquiries approve or proposals with respect recommend, or propose to recommend, the approval or recommendation of any Acquisition ProposalProposal (any of the foregoing being referred to herein as an “Adverse Recommendation Change”), or (ii) engage cause or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential permit LPB or nonpublic information or data to, or have or participate in any discussions with any person relating LPSB to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (whether written each, an “Acquisition Agreement”) constituting or oralrelated to, binding or non-binding) which is intended to or would be reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.13) in connection with or relating to any Acquisition Proposal5.06(b)). Notwithstanding the foregoing, in the event that after the date of this Agreement and at any time prior to the receipt special meeting of LPB’s shareholders to approve the Requisite Capital One VoteMerger, the LPB Board of Directors may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided, that the case or Capital OneLPB Board of Directors determines in good faith, or after consultation with its outside legal counsel and financial advisors, that the Requisite Discover Votefailure to do so would be reasonably likely to result in a breach of its fiduciary duties to the shareholders of LPB under applicable Law, and provided, further, that the LPB Board of Directors may not effect such an Adverse Recommendation Change unless (A) the LPB 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 Discovera 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 amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new five (5) business day period) and (B) Horizon does not make, within five (5) business days after receipt of such notice, a party receives an unsolicited bona fide written Acquisition Proposalproposal that would, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making reasonable good faith judgment of the Acquisition Proposal if the LPB 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 LPB Board’s fiduciary duties to the shareholders of such party concludes LPB under applicable law. LPB agrees that, during the five (5) business day period prior to its effecting an Adverse Recommendation Change, LPB and its officers, directors and representatives shall negotiate in good faith (after receiving the advice of with Horizon and its outside counselofficers, directors, and with respect representatives regarding any revisions to financial mattersthe terms of the transactions contemplated by this Agreement proposed by Horizon.
(d) In addition to the obligations of LPB set forth in paragraphs (a), its financial advisors(b) that failure to take such actions would be more likely than not to result in a violation and (c) of its fiduciary duties under applicable law; providedthis Section 5.06, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party LPB shall have entered into a confidentiality agreement with the person making such Acquisition Proposal 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 such party. Each party willas promptly as possible, and will cause its Representatives toin any event within two (2) business days after LPB first obtains knowledge of the receipt thereof, immediately cease advise Horizon orally and cause to be terminated any activities, discussions or negotiations conducted before the date in writing of this Agreement with any person other than Discover or Capital One, as applicable, with respect to any Acquisition Proposal. Each party will promptly (within twenty-four (24i) hours) advise the other party following receipt of any Acquisition Proposal or any request for information that LPB reasonably believes could lead to or contemplates an Acquisition Proposal or (ii) any inquiry LPB 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 LPB any offer, material change, modification or development to a previously made offer, letter of intent or any other material development, LPB (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 direct or indirect acquisition or purchase, in one transaction or a series of transactions, of (A) assets or businesses that constitute 25% or more of the revenues, net income or assets of LPB and its Subsidiaries, taken as a whole, or (B) 25% or more of any class of equity securities of LPB or any of its Subsidiaries; (ii) any tender offer or exchange offer that, if consummated, would result in any Person beneficially owning 25% or more of any class of equity securities of LPB or any of its Subsidiaries; (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange or similar transaction involving LPB, LPSB or any of its other Subsidiaries pursuant to which any Person or the shareholders of any Person would own 25% or more of any class of equity securities of LPB, LPSB, or any of LPB’s other Subsidiaries or of any resulting parent company of LPB or LPSB; or (iv) any other transaction the consummation of which could reasonably be expected to lead impede, interfere with, prevent or materially delay the Merger or that could reasonably be expected to an Acquisition Proposal, and dilute materially the substance thereof (including the terms and conditions of and the identity benefits to Horizon of the person making such inquiry or Acquisition Proposal)transactions contemplated hereby, will provide other than the other party with an unredacted copy transactions contemplated hereby. For purposes of any such Acquisition Proposal and any draft agreementsthis Section 5.06, proposals or other materials received in connection with any such inquiry or Acquisition Proposala “Person” shall include a natural Person, and will keep the other party 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 Acquisition Proposal. Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is legal, commercial, or Governmental Authority, including, a party corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in accordance with the terms thereofconcert, or any Person acting in a representative capacity.
(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 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
Sources: Agreement and Plan of Merger (Horizon Bancorp /In/)