Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 4 contracts
Sources: Merger Agreement (Invitrogen Corp), Merger Agreement (Invitrogen Corp), Merger Agreement (Applera Corp)
Change of Recommendation. (i) Notwithstanding anything Section 5.2(a), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend, modify, qualify or condition in a manner adverse to Acquiror its Recommendation, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its shareholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) The Scheme Meeting has not occurred;
(2) It shall have (A) the Company shall have given Parent and Merger Sub prompt provided Acquiror with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least five (5) business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which notice shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (cIII) that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that such notice and such statement shall not constitute a Change of Recommendation), (B) the Company shall have given Parent provided to Acquiror a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms Person or group making the Superior Offer or any of this Agreement its Representatives and (or make another proposalC) and, during provided Acquiror with the Notice Period, the Company shall, opportunity to meet and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions discuss a modification of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that the transaction theretofore determined to be a Superior Offer no longer constitutes a Superior Offer;
(3) Either (A) on or before the expiration of the five (5) business day period following the delivery to Acquiror of any Change of Recommendation Notice, Acquiror does not make a written offer, which shall be binding and enforceable against Acquiror and capable of acceptance by the Company (a “Matching Bid”), in response to such Adverse Superior Offer, or (B) following receipt of a Matching Bid within the five (5) business day period following the delivery to Acquiror of any Change of Recommendation Change is otherwise not necessaryNotice, and (C) the Company’s Board of Directors of the Company determines in good faith (at a meeting of the Board of Directors of the Company at which it consults prior to such determination with its outside legal counsel and its financial advisors (including the Independent Financial Advisor)) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have determined materially breached any of the provisions set forth in this Section 5.4 (including Section 5.4(b)) in connection with such Acquisition Proposal.
(ii) In addition, and notwithstanding anything to the contrary set forth herein, at any time prior to obtaining the approval of the shareholders of the Company of this Agreement and the Scheme of Arrangement, the Board of Directors of the Company may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after considering the results consultation with its outside legal advisors, that, in light of such negotiations and giving Intervening Event, the failure of such Board of Directors to effect such a Change of Recommendation would be reasonably likely to the proposals made by Parent and Merger Subresult in a breach of its fiduciary duties under applicable Legal Requirements; provided, if anyhowever, that such Alternative Transaction Proposal(A) the Company shall send to Acquiror written notice of its intention to effect a Change of Recommendation, if applicablespecifying in reasonable detail the reasons therefor, continues at least five (5) business days prior to constitute effecting a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thatof Recommendation, (1) if during the Notice Period described in clause (B) the Company shall provide Acquiror with an opportunity to meet and discuss the basis for a Change of Recommendation, Acquiror’s reaction thereto and any possible modification to the terms and conditions of this paragraph any revisions are made to Agreement in response thereto so that the Superior Proposaltransactions contemplated hereby may be effected and (C) after such discussions, if applicable, and the Company’s Board of Directors in its good faith judgment determines (of the Company concludes, after consultation with its financial advisors and outside legal advisors, that the failure to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements.
(iii) that such revisions are material (it being understood that any change in the purchase price or form The Board of consideration in such Superior Proposal shall be deemed a material revision), Directors of the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 4 contracts
Sources: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Holding Co. Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iv) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Prospectus/Joint Proxy Statement pursuant to clause (iii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would be inconsistent with result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that prior to any such Adverse Recommendation Change, (A) the Company shall have given have, at least five (5) days prior to taking such action, provided to Parent and Merger Sub prompt written notice advising them which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may withhold, withdraw, amend or modify the Company Board Recommendation and, in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Prospectus/Joint Proxy Statement pursuant to clause (iii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least five (5) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving effect to Superior Offer, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of its good faith judgment determines fiduciary duties to its stockholders under applicable Legal Requirements; and
(after consultation with its financial advisors and outside legal advisors5) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the The Company shall deliver a new written notice to Parent and shall comply with not have materially breached (directly or indirectly) any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) 5.3, as applicable, with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 4 contracts
Sources: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.)
Change of Recommendation. Notwithstanding anything Solely in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Proposal, the Company’s Board of Directors mayof the Company may make a Change of Recommendation, if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors i) through (vi) are met:
(i) the Superior Proposal has been made, has not been withdrawn and outside legal advisorscontinues to be a Superior Proposal;
(ii) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Company Shareholder Approval has not yet been obtained;
(Aiii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Company has received a Superior Proposal, a summary of (2) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given provided to Parent a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Proposal in connection with Parent in good faith such Superior Proposal (to the extent Parent desires not previously provided to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsParent), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, ; and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Superior Proposal would no longer be a Superior Proposal;
(iv) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s Board of Directors shall have has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and TWP or another financial adviser of national standing in the United States of America) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal;
(v) the Board of Directors of the Company has concluded in good faith, after considering the results receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation is required to effect a Change of Recommendation to comply with its financial advisors and outside legal advisorsfiduciary obligations to the shareholders of the Company under applicable law of the State of Israel; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 3 contracts
Sources: Merger Agreement (Scopus Video Networks Ltd.), Merger Agreement (Harmonic Inc), Merger Agreement (Scopus Video Networks Ltd.)
Change of Recommendation. (i) Notwithstanding anything the provisions of Section 5.2(b), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Company may withhold, withdraw, amend or modify its recommendation in favor of adoption of this Agreement in a manner adverse to Parent, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Stockholders’ Meeting has not occurred;
(2) It shall have (A) the Company shall have given provided Parent and Merger Sub prompt with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least three business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)III) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, and (B) provided to Parent a copy of all materials and information delivered or made available to the Company shall have given Parent and Merger Sub three Person or group making the Superior Offer it has received;
(3) Business Days Either (A) on or before the expiration of the three-business-day period following the delivery to Parent of any Change of Recommendation Notice, Parent does not make a written offer, which shall be binding and enforceable against Parent and capable of acceptance by Company (a “Notice PeriodMatching Bid”), in response to such Superior Offer, or (B) after following receipt of a Matching Bid within the three business day period following the delivery to Parent of each such notice to propose revisions to the terms any Change of this Agreement (or make another proposal) and, during the Notice PeriodRecommendation Notice, the Board of Directors of Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent determines in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment at a meeting of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined of Company at which it consults prior to such determination with outside legal counsel and financial advisor) that after taking into account the Matching Bid, the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, after considering the results following consultation with its outside legal counsel, that, in light of such negotiations Superior Offer and giving effect to after taking into consideration the proposals made by Parent and Merger SubMatching Bid, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) failure of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its good faith judgment determines fiduciary duties under applicable Legal Requirements; and
(after consultation with its financial advisors and outside legal advisors5) that such revisions are material (it being understood that It shall not have materially breached any change of the provisions set forth in the purchase price Section 5.2 or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d5.3 (including Section 5.3(b)).
(ii) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s The Board of Directors does of Company shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 3 contracts
Sources: Merger Agreement (Divx Inc), Merger Agreement (Sonic Solutions/Ca/), Merger Agreement (Divx Inc)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (vi) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Shareholders’ Meeting has not occurred;
(iii) The Company shall have (a) delivered to Parent written notice (a “Change of Recommendation Notice”) at least three (3) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer, and (3) that the Company intends to be effect a Change of Recommendation and the manner in which it intends to do so, (b) provided to Parent a copy of all written materials delivered to the Person or group making the Superior Offer in connection with respect thereto pursuant to this Section 5.4such Superior Offer and a summary of all material oral conversations between the Company and such party regarding the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)) made available to Parent all materials and information made available to the Person or group making the Superior Offer in connection with such Superior Offer;
(iv) After delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such three (3) Business Day period, if applicableand negotiate in good faith with respect thereto during such three (3) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to shareholders in favor of approval and adoption of this Agreement and approval of the Merger without making a Change of Recommendation;
(in v) The Board of Directors of the judgment Company (by a vote of a majority of the independent members of the Board of Directors of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such Superior Offer and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation is necessary and required to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made comply with its fiduciary obligations to the Superior Proposal, if applicable, and the Company’s Board shareholders of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Parent or the Company, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company or Parent, as the case may be, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(2) In the case of Parent, its stockholders have not approved the Share Issuance, and in good faith the case of the Company, its stockholders have not adopted this Agreement;
(after consultation 3) It shall have provided the other party hereto with written notice of its financial advisors and outside legal advisorsintention to effect a Change of Recommendation (a “Change of Recommendation Notice”) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that at least two business days prior to any such Adverse Recommendation Changeeffecting a Change of Recommendation, which shall state expressly (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of that it has received a Superior Offer, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) After delivering the Change of Recommendation Notice, (B) the Company it shall have given Parent and Merger Sub three (3) Business Days (provided the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate other party hereto with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by the Companyother party for the purpose of enabling such party’s Board of Directors shall have determined to proceed with its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, without effecting a Change of Recommendation;
(5) Its Board of Directors has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior Proposal breach of its fiduciary obligations to its stockholders under applicable Legal Requirements; and
(6) It shall not have breached in any material respect any of the provisions set forth in Section 5.2 or that such Adverse Recommendation Change is otherwise still required; provided further that, this Section 5.3 (1) if during the Notice Period described in including clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revisionSection 5.3(c)(i), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or a Superior Offer (which shall be two (2subject to Section 5.3(d)(i) Business Days instead of three (3) Business Days and (2) not subject to this Section 5.3(d)(ii)), nothing in this Agreement shall prohibit or restrict the event the Company’s Board of Directors does of the Company or Parent, as the case may be, from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that such party shall send to the other party hereto written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Board of Directors of the Company or Parent, as the case may be, shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
Change of Recommendation. (i) Notwithstanding anything to the contrary contained in Section 5.3(a) or set forth elsewhere in this Agreement Agreement, (x) in response to a Superior Offer, the Board of Directors of the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Company Voting Proposal, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the contrarystockholders of the Company, at any time prior to obtaining may recommend that the stockholders of the Company Stockholder Approvalaccept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Company Change of Recommendation”), (y) in response to an unsolicited Superior Offer, the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (z) in response to an unsolicited Superior Offer, the Company or any of its Subsidiaries may terminate this Agreement in order to enter into a definitive agreement to consummate such Superior Offer and transactions contemplated thereby, in the case of the foregoing clauses (x), (y) and (z), only if all of the following conditions are met:
(A) the applicable Superior Offer has not been withdrawn and continues to be a Superior Offer;
(B) the Board of Directors of the Company has determined in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such the proposed action contemplated by clause (x), (y) and/or (z) above would reasonably be inconsistent with expected to be a breach of its fiduciary duties to the stockholders of the Company under applicable Delaware Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(AC) the stockholders of the Company have not yet approved the Company Voting Proposal;
(D) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Company Change of Recommendation Notice”) at least five (5) Business Days prior to publicly effecting the applicable action contemplated by clause (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and ), (y) and/or (z) above, which shall state expressly (1) that the Company has received the applicable Superior Offer, (2) the most recent terms and conditions of such Superior Offer and the identity of the Person or group making such Superior Offer (and in the event the decision relates Company intends to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested exercise its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b) 7.1(d)(ii), the Company shall provide to Parent a copy of the proposed definitive agreement to be entered into in connection with such Superior Offer), and (c3) that the Company intends to effect the proposed action referenced in clause (x), (By) and/or (z) above in connection with such Superior Offer; and
(E) after delivering the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery Change of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodRecommendation Notice, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate provides Parent with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement during the five-Business Day period contemplated by the preceding clause (iv), and negotiate in good faith with respect thereto during such five-Business Day period, so that, if applicable, such Alternative Transaction Proposal ceases as would enable the Company to constitute (proceed with its recommendation to stockholders in the judgment favor of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsCompany Voting Proposal without effecting the proposed action referenced in clause (x), a Superior Proposal or, if (y) and/or (z) above.
(ii) In addition and not in limitation of the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryforgoing, and (Cnotwithstanding anything to the contrary contained in Section 5.3(a) or set forth elsewhere in this Agreement, the Company’s Board of Directors shall have of the Company may effect a Company Change of Recommendation for any reason other than the receipt of a Superior Offer only if all of the following conditions are met:
(A) the Board of Directors of the Company has determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and consultation with the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, that the failure to effect the proposed Company Change of Recommendation would reasonably be expected to be a breach of its fiduciary duties to the stockholders of the Company under Delaware Law;
(B) that such revisions are material the stockholders of the Company have not yet approved the Company Voting Proposal;
(it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), C) the Company shall deliver a new written notice have delivered to Parent and a Company Change of Recommendation Notice (which notice shall comply with the requirements of this Section 5.4(dnot itself be a Company Recommendation Change) with respect to such new written notice except that the new Notice Period shall be two at least five (25) Business Days instead of three prior to publicly effecting the proposed, which shall state expressly (31) Business Days that the Company is proposing to effect a Company Recommendation Change, and (2) in the event reason(s) for which the Company’s Board of Directors does not make of the determination referred Company proposes to in clause effect the Company Recommendation Change; and
(CD) after delivering the Company Change of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d)Notice, the procedures referred Company negotiates with Parent in good faith during such five-Business Day period so as to enable the Company to proceed with its recommendation to stockholders in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changefavor of the Company Voting Proposal without making a Company Recommendation Change.
Appears in 2 contracts
Sources: Merger Agreement (Solectron Corp), Merger Agreement (Flextronics International Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.2(b), at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors of the Company may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make a Change of Recommendation and, in the case of a Superior Proposal or an Adverse Recommendation Change; provided that prior Intervening Event after which Parent does not timely deliver a Continuation Notice (as defined below), terminate this Agreement in accordance with Section 8.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(Aii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least three (x3) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that the decision Company has received a Superior Proposal or determined the existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provide to Parent a copy of all materials and information delivered or made available to the Company shall have given Parent Person or group making the Superior Proposal in connection with a Superior Proposal (to the extent not previously delivered or made available to Parent), and Merger Sub (C) during the aforementioned three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) andDay period, during the Notice Periodif requested by Parent, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent engaged in good faith (negotiations to amend this Agreement in such a manner that the extent Parent desires to negotiate) to make such adjustments Superior Proposal would no longer be a Superior Proposal or, in the terms case of an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Parent shall not have, within the aforementioned three (3) Business Day period, made an offer that the Company’s Board of Directors has in good faith determined (after the receipt of advice from and conditions consultation with its outside legal counsel and a financial adviser of this Agreement so that, if applicable, such national standing) results in the Alternative Transaction Proposal ceases that had been determined to constitute (be a Superior Proposal no longer being a Superior Proposal or, in the judgment case of an Intervening Event, obviates the need for a Change of Recommendation;
(iv) the Board of Directors of the Company has concluded in good faith, after receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal or Intervening Event and after considering any adjustments or negotiations pursuant to the preceding clause (ii), that the Company’s Board of Directors, after consultation ’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect fiduciary obligations to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requiredstockholders of the Company under Delaware Law; provided further that, and
(1v) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 2 contracts
Sources: Merger Agreement (Secure Computing Corp), Merger Agreement (McAfee, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.02(d), at any time prior to obtaining the Acceptance Time, the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes subject to compliance in all material respects with the other provisions of this Section 6.02, (x) terminate this Agreement pursuant to Section 9.01(f) in order to enter into an Acquisition Agreement providing for a Superior Proposal, or (y) effect an Adverse Recommendation Change in response to an Intervening Event; provided that (1) the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, make (2) in the case of Section 6.02(e)(x), the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and the Company terminates this Agreement pursuant to Section 9.01(f), (3) the Company has provided prior written notice to Parent and Merger Sub, at least four (4) Business Days in advance, that it will take the applicable action referred to in Section 6.02(e)(x) or (y) and specifying in reasonable detail the reasons therefor (a “Notice of Intended Recommendation Change”) (which notice shall not itself constitute an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change), and (A4) the Company shall have given Parent and Merger Sub prompt written notice advising them of has complied in all material respects with the following additional covenants:
(xi) the decision of the Company’s Board of Directors to take if such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided is being taken pursuant to Section 5.4(b) and (c6.02(e)(x), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “if requested by Parent, after providing any such Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodIntended Recommendation Change, the Company shall, and shall direct instruct its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Merger Sub in good faith during any such four (4) Business Day period (it being understood and agreed that any material amendment to the extent terms of any such Superior Proposal (and in any event including any amendment to any price term thereof) shall require a new Notice of Intended Recommendation Change and compliance with the other requirements of this Section 6.02(e) anew except that references herein to a four (4) Business Day period shall be deemed to be references to a two (2) Business Day period) regarding any written and binding proposal by Parent desires to negotiate) to make such adjustments in amend the terms and conditions of this Agreement so that, if applicable, and the other agreements contemplated hereby and at the end of such Alternative Transaction Proposal ceases to constitute four (4) Business Day period (or two (2) Business Day period in the judgment case of a material amendment) the Company’s Company Board again makes the determinations described in clauses (1) and (2) of Directors, after consultation this Section 6.02(e) with its financial advisors and outside legal advisors), a respect to such Superior Proposal or, Proposal; and
(ii) if the such Adverse Recommendation Change does is being made pursuant to Section 6.02(e)(y):
(1) such Adverse Recommendation Change is being made as a result of an event, fact, development or occurrence that materially affects the business, assets or operations of the Company and that was not involve known or reasonably foreseeable by the Company Board as of the date hereof and becomes known to the Company Board after the date hereof and prior to the Acceptance Time (each, an Alternative Transaction Proposal“Intervening Event”); provided that in no event shall any of the following constitute or be deemed to be an Intervening Event: (I) any event, fact, development or circumstance resulting from any breach of this Agreement by the Company, (II) the receipt, existence or terms of any Takeover Proposal or any matter relating thereto or any consequences thereof, (III) the fact, in and of itself, that the Company exceeds any internal or published projections or (IV) changes, in and of themselves, in the price of the Company Common Stock; and
(2) during any such four (4) Business Day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any written and binding proposal by Parent to make such adjustments in amend the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering other agreements contemplated hereby and at the results end of such negotiations and giving effect to four (4) Business Day period the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during Company Board again makes the Notice Period determinations described in clause (B1) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d6.02(e) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeIntervening Event.
Appears in 2 contracts
Sources: Merger Agreement (Nimble Storage Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, (x) at any time prior to obtaining the time the Company Stockholder ApprovalApproval is obtained, the Company’s Company Board may make a Change of Directors mayRecommendation in connection with a Superior Proposal that is made and not withdrawn (and that continues to be a Superior Proposal) or in response to an Intervening Event, only if it concludes the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor Law and (y) in the event the decision relates to an Alternative Transaction case of a Superior Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to Company may also terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b7.1(f) and to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that neither the Company Board nor the Company shall take any of the foregoing actions unless:
(c), (Bi) the Company shall have given complied in all material respects with its obligations under this Section 5.3(e);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three (3) at least four Business Days in advance (the “Notice Period”) after delivery to the effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with an Acquisition Proposal, the information specified by Section 5.3(c) with respect to such Acquisition Proposal and the material terms and conditions of each such Superior Proposal (and such notice shall include a copy of the latest draft of the proposed Alternative Acquisition Agreement and all other material documents relating to propose revisions such Superior Proposal, including financing documents);
(iii) where requested to the terms of this Agreement (or make another proposal) and, during the Notice Perioddo so by Parent, the Company shallshall have, and shall direct its financial advisors have caused each of the Company Subsidiaries to have, and outside legal advisors toshall have instructed Representatives of the Company and the Company Subsidiaries to have, negotiate negotiated with Parent and its Representatives during the applicable Notice Period in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction that such Superior Proposal ceases would cease to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal oror such Intervening Event would cease to warrant a Change of Recommendation, if in each case, such that the Adverse Recommendation Change does not involve an Alternative Transaction ProposalCompany Board’s failure to take the applicable action described in clauses (x) or (y) above would no longer be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, to make such adjustments however, that in the event of any material revision to the terms and or conditions of the applicable Superior Proposal or any material change in the applicable Intervening Event, as the case may be, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of Section 5.3(e)(ii) and this Agreement so Section 5.3(e)(iii) with respect to such new Determination Notice (except that the Notice Period in respect of such Adverse Recommendation Change is otherwise not necessarynew Determination Notice shall be two Business Days) and Parent shall have had the right to submit a new or revised offer with respect thereto;
(iv) at or following the end of the applicable Notice Period, and (C) the Company’s Company Board of Directors shall have determined in good faithfaith (after consultation with its outside legal counsel) based on the information then available and taking into account Parent’s offers pursuant to Section 5.3(e)(iii) that with respect to any such action proposed to be taken, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, Acquisition Proposal continues to constitute a Superior Proposal or such Intervening Event continues to warrant a Change of Recommendation, as the case may be, and that the failure by the Company Board to take such Adverse Recommendation Change is otherwise proposed action would still requiredreasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided further that, and
(1v) if during in the Notice Period described in clause (B) event of a termination of this paragraph any revisions are made Agreement to the enter into a definitive Alternative Acquisition Agreement with respect to a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 7.1(f) and prior to or concurrently with such termination of this Agreement, the Company shall have paid the Company Termination Fee and any other amounts required by Section 7.4, including interest, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d7.4(e), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into, or propose to execute or enter into, any letter of intent of similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) The stockholders of the Company have not approved this agreement in accordance with applicable law;
(iii) The Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least five calendar days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (AB) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) After delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five calendar day period, if applicableand negotiate in good faith with respect thereto during such five calendar day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute (proceed with its recommendation to stockholders in the judgment favor of approval and adoption of this Agreement and approval of the Company’s Merger without making a Change of Recommendation;
(v) the Board of Directors, Directors of the Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change the Superior Offer is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision)counsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Sources: Merger Agreement (Sun Microsystems, Inc.), Merger Agreement (Seebeyond Technology Corp)
Change of Recommendation. Notwithstanding anything in this Agreement Subject to the contraryprovisions of Section 5.2 and Section 5.3, at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vii) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five-Business Day period, if applicableand negotiate in good faith with respect thereto during such five-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the terms of the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law;
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d5.3; and
(vii) with respect the Company shall have used all commercially reasonable efforts to such new written notice except that mail the new Notice Period shall be two (2) Business Days instead Proxy Statement to the stockholders of three (3) Business Days and (2) in the event Company as promptly as practicable after the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changedate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Cap Gemini Sa), Merger Agreement (Kanbay International Inc)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the Company Stockholder ApprovalApproval is obtained, the Company’s Company Board may make a Change of Directors mayRecommendation (i) in connection with a Superior Proposal or (ii) in response to an event, occurrence, development or state of facts or circumstances occurring after the Agreement Date that was neither known to, nor reasonably foreseeable by, the Company Board prior to the Agreement Date, in either case of (i) or (ii), if it concludes the Company Board determines in good faith (after consultation with its financial advisors and its outside legal advisorscounsel) that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make and may also terminate this Agreement pursuant to Section 7.1 to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to a Superior Proposal; provided provided, however, that prior to any the Company Board shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) complied in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided all respects with respect thereto pursuant to its obligations under this Section 5.4, including the information required 5.3(e) (other than immaterial or inadvertent violations not intended to be provided pursuant to Section 5.4(b) and result in an Acquisition Proposal);
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three at least seventy-two (372) Business Days hours in advance (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 5.3(c) with respect to such Superior Proposal;
(or make another proposaliii) and, the Company shall have during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any material revisions to the Company’s Board terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of Section 5.3(e)(ii) and outside legal advisors), a this Section 5.3(e)(iii) with respect to such new Determination Notice and the revised Superior Proposal orcontemplated thereby;
(iv) at or following the end of such Notice Period, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and its outside legal advisorscounsel) that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any revisions are material to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (it being understood that any change iii) above); and
(v) in the purchase price or form event of consideration in such a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal shall be deemed a material revision)Proposal, the Company shall deliver a new written notice have validly terminated this Agreement in accordance with Section 7.1 including paying the Company Termination Fee in accordance with Section 7.4(a) prior to Parent and shall comply or concurrently with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changetermination.
Appears in 2 contracts
Sources: Merger Agreement (SolarWinds, Inc.), Merger Agreement (SolarWinds, Inc.)
Change of Recommendation. Except as expressly permitted by this Section 5.3(d), the Company Board shall not, nor shall any committee thereof, directly or indirectly, (i) (A) withdraw or qualify (or amend or modify in a manner adverse to Parent) or publicly propose to withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Company Board or committee thereof of this Agreement, or, subject to the right of the Company Board to make a Company Adverse Recommendation Change in accordance with this Section 5.3(d), fail to include the Company Board’s recommendation that the Company Stockholders approve the adoption of this Agreement in the Proxy Statement when disseminated to the Company Stockholders (and at all times thereafter prior to receipt of the Company Stockholder Approval), (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop-look-and-listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company Board (or any committee thereof) may take no position with respect to an Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to in this clause), (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made public or sent or given to the Company Stockholders (or any Person or Group shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal), it being understood that this clause (D) shall only apply to one (1) such request by Parent per such Alternative Company Transaction Proposal or material modification, as applicable, or (E) resolve, agree or publicly propose to do any of the foregoing (each action or failure to act described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or publicly propose to approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (A) constituting, or providing for, any Alternative Company Transaction Proposal or (B) requiring it (or that would require it) to abandon, terminate or fail to consummate the Merger. Notwithstanding anything to the contrary set forth in this Agreement to the contrarySection 5.3(d), at any time prior to obtaining the Company Stockholder Approval, the Company’s Company Board of Directors may, if it concludes subject to compliance with Section 5.3(e), solely in response to (1) a Company Intervening Event, make a Company Adverse Recommendation Change under subclause (A) or (to the extent related to subclause (A)) (E) of the definition thereof or (2) a Superior Company Proposal that did not result from a breach of Section 5.3(a), make a Company Adverse Recommendation Change, if, in either case, the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisors) counsel and financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Sources: Merger Agreement (Liberty Expedia Holdings, Inc.), Merger Agreement (Expedia Group, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining the adoption of this Agreement by the Required Company Stockholders, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (i)(C) of Section 5.2(d) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement/Prospectus pursuant to clause (i)(B) of Section 5.2(d)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would could reasonably be inconsistent with expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice that shall state that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Article VII enter into a binding written agreement concerning an Acquisition Proposal and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement/Prospectus pursuant to clause (i)(B) of Section 5.2(d)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions are met:
(1) A Superior Offer has been made and has not been withdrawn;
(2) This Agreement shall not have been adopted at the Company Stockholders’ Meeting;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent concludes in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation could reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 2 contracts
Sources: Merger Agreement (Medicinova Inc), Merger Agreement (Avigen Inc \De)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least four Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material most recent terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer (and in the event the Company exercises its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b7.1(h), the Company shall provide to Parent a copy of the final agreement to be entered into in connection with the Superior Offer) and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such four-Business Day period, if applicableand negotiate in good faith with respect thereto during such four-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to subsection (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Sources: Merger Agreement (Micron Technology Inc), Merger Agreement (Lexar Media Inc)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayor the Special Committee may withhold, if it concludes withdraw, amend or modify its recommendation in good faith favor of adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that its shareholders accept the tender or exchange offer (after consultation with its financial advisors and outside legal advisors) that any of the failure to take such action would be inconsistent with its fiduciary duties under applicable Lawforegoing actions, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of whether by the Company’s Board of Directors to take such action and or the reasons therefor and (y) in the event the decision relates to an Alternative Transaction ProposalSpecial Committee, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) a Superior Offer has been made and has not been withdrawn;
(2) the Company shareholders have not adopted this Agreement;
(3) it shall have provided Parent with written notice of its intention to effect a Change of Recommendation (a “Change of Recommendation Notice”) at least two business days prior to effecting a Change of Recommendation, which shall state expressly (A) that it has received a Superior Offer, (B) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) after delivering the Change of Recommendation Notice, (B) the Company it shall have given provided Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by Parent for the purpose of enabling the Company’s Board of Directors shall have determined or the Special Committee to proceed with its recommendation in favor of the adoption of this Agreement, without effecting a Change of Recommendation;
(5) its Board of Directors or the Special Committee has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors or the Special Committee to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a breach of its fiduciary obligations to its shareholders under applicable laws; and
(6) it shall not have breached in any material respect any of the provisions set forth in this Section 5.02 or Section 5.01 with respect to such Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thata Superior Offer (which shall be subject to Section 5.02(d)(i) and not subject to this Section 5.02(d)(ii)), (1) if during the Notice Period described nothing in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and Agreement shall prohibit or restrict the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) or the Special Committee from making a Change of Recommendation to the extent that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does or the Special Committee determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of it to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ or the Special Committee fiduciary obligations to its shareholders under applicable laws; provided, however, that the Company shall send to Parent written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Company’s Board of Directors or the Special Committee shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.02(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Sources: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Stockholders’ Meeting has not occurred;
(iii) The Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least five days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (AB) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) that the Company intends to effect a Change of Recommendation;
(iv) After delivering the Change of Recommendation Notice, the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five-day period, if applicableand negotiate in good faith with respect thereto during such five-day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute (in the judgment of the Company’s Board of Directors, after consultation proceed with its financial advisors recommendation to stockholders in favor of approval and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and approval of the Merger without making a Change is otherwise not necessary, and of Recommendation; and
(Cv) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Sources: Merger Agreement (Storage Technology Corp), Merger Agreement (Sun Microsystems, Inc.)
Change of Recommendation. Notwithstanding anything to the contrary set forth in this Agreement to Agreement, the contraryCompany Board may, at any time prior to obtaining but not after the time the Requisite Company Vote is obtained, make a Change of Recommendation if (i) an Intervening Event has occurred or (ii) the Company Stockholder Approval, receives an Acquisition Proposal that the Company’s Company Board of Directors may, if it concludes has determined in good faith (constitutes a Superior Proposal, and the Company Board has determined in good faith after consultation consulting with its financial advisors advisor and outside legal advisors) counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that that, the Company Board may not take any such action unless (1) in the case of clause (ii) above, the receipt of such Acquisition Proposal was not the result of a material breach of this Section 6.2, (2) prior to any making such Adverse Recommendation ChangeChange of Recommendation, (A) the Company shall have given Parent and Merger Sub prompt provides prior written notice advising them to Parent at least five Business Days in advance (the “Change of (xRecommendation Notice Period”) the decision of the Company’s Board of Directors its intention to take such action and the reasons therefor and (y) action, which notice shall, in the event the decision relates to an Alternative Transaction case of a Superior Proposal, a summary of specify the material terms and conditions of the Alternative Transaction such Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, (including the information required to be provided pursuant to Section 5.4(bidentity of the Person making such Superior Proposal) and (c)attach the most current unredacted version of any documents evidencing such Superior Proposal, (B) and any material modifications to any of the Company shall have given Parent and Merger Sub three foregoing, and, in the case of an Intervening Event, include a reasonably detailed description of such Intervening Event, (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Change of Recommendation Notice Period, Period the Company shall, and shall direct cause its financial advisors advisor and outside legal advisors counsel to, negotiate with Parent in good faith (to the extent should Parent desires to negotiate) propose to make such adjustments in amendments of the terms and conditions of this Agreement so such that, if applicablein the case of a Superior Proposal, such Alternative Transaction Acquisition Proposal ceases no longer constitutes a Superior Proposal and, in the case of an Intervening Event, the failure to constitute make such Change of Recommendation in light of such Intervening Event would no longer be inconsistent with the fiduciary duties of the Company Board under applicable Laws (in each case as determined in the good faith judgment of the Company’s Company Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, taking into account any such amendments that Parent shall have agreed to make such adjustments in prior to the end of the Change of Recommendation Notice Period) and (4) the Company Board takes into account any amendments of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined agreed to by Parent in good faith, after considering the results of such negotiations and giving effect writing prior to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse end of the Change of Recommendation Change is otherwise still requiredNotice Period; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form material amendment of consideration in such Superior any Acquisition Proposal shall will be deemed to be a material revision)new Acquisition Proposal, including for purposes of the Change of Recommendation Notice Period; provided, however, subsequent to the initial Change of Recommendation Notice Period, the Company shall deliver a new written notice to Parent and shall comply with the requirements Change of this Section 5.4(d) with respect to such new written notice except that the new Recommendation Notice Period shall be two (2) reduced to three Business Days instead and, following such reduction any additional Change of three (3) Recommendation Notice Periods shall be further reduced to one Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeDay.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, if, at any time prior to obtaining the Company Stockholder Requisite Shareholder Approval, the Company’s Company receives a Competing Proposal which the Board of Directors may, if it of the Company concludes in good faith faith, after consulting with outside counsel and financial advisors, constitutes a Superior Proposal, the Board of Directors of the Company may (x) effect a Change of Recommendation and/or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal if the Board of Directors of the Company determines in good faith, after consultation with outside counsel and its financial advisors and outside legal advisors) advisor, that the failure to take such action would could reasonably be inconsistent with expected to violate its fiduciary duties under applicable Law; provided, make an Adverse however that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless concurrently with such termination the Company pays the Company Termination Fee payable pursuant to Section 8.02(a); and provided, further, that the Board of Directors of the Company may not effect a Change of Recommendation Change; provided that prior pursuant to any such Adverse Recommendation Change, the foregoing clause (Ax) or terminate this Agreement pursuant to the foregoing clause (y) in response to a Superior Proposal unless (i) the Company shall have given Parent and Merger Sub prompt provided prior written notice advising them to the Parents, at least five (5) business days in advance (the “Notice Period”), of (x) the decision its intention to effect a Change of the Company’s Board of Directors Recommendation in response to take such action and the reasons therefor and (y) in the event the decision relates Superior Proposal or terminate this Agreement to an Alternative Transaction enter into a definitive agreement with respect to such Superior Proposal, a summary of which notice shall specify the material terms and conditions of any such Superior Proposal (including the Alternative Transaction identity of the party making such Superior Proposal) and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) material documents and (c), (Bii) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors of the Company shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anyconsultation with outside counsel, that such Alternative Transaction Proposal, if applicable, continues the failure to constitute make a Change of Recommendation in connection with the Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made could be reasonably likely to the Superior Proposal, if applicable, and violate the Company’s Board of Directors’ fiduciary duties under applicable Law, and (iii) the Company shall have promptly notified the Parents in writing of the determinations described in clause (ii) above, and (iv) following the expiration of the Notice Period, and taking into account any revised proposal made by the Parents since commencement of the Notice Period, the Board of Directors of the Company has determined in its good faith judgment determines (faith, after consultation with its financial advisors and outside legal advisors) counsel, that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal remains a Superior Proposal; provided, however, that during such Notice Period the Company shall be deemed in good faith negotiate with the Parents, to the extent the Parents wish to negotiate, to enable the Parents to make such proposed changes to the terms of this Agreement, provided, further, that in the event of any material change to the material terms of such Superior Proposal, the Board of Directors of the Company shall, in each case deliver to the Parents an additional notice, and the Notice Period shall recommence; (v) the Company is in compliance, in all material respects, with Section 6.07, and (vi) with respect to a material revisiontermination of this Agreement pursuant to the foregoing clause (y), the Company shall deliver a new written notice to Parent and shall comply with concurrently pays the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change Company Termination Fee pursuant to this Section 5.4(d8.02(a), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Merger Agreement (Clear Channel Communications Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least three Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such three-Business Day period, if applicableand negotiate in good faith with respect thereto during such three-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached in any material respect any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 1 contract
Sources: Merger Agreement (Intellisync Corp)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer and release the Person making the Superior Offer from any "standstill" obligation pursuant to agreements between such Person and the Company (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a "Change of Recommendation"), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met: A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn or matched by Parent; The Shareholders' Meeting has not occurred; The Company shall have (a) delivered to Parent written notice (a "Change of Recommendation Notice") at least two Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days that the Company may effect a Change of Recommendation and the manner in which it may do so, (the “Notice Period”b) after delivery provided to Parent a copy of each such notice to propose revisions all written materials delivered to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Offer in connection with Parent in good faith such Superior Offer (to the extent Parent desires not previously provided to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsParent), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (Cc) made available to Parent all materials and information made available to the Company’s Person or group making the Superior Offer in connection with such Superior Offer; and The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving effect to Superior Offer, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation to effect a Change of Recommendation could reasonably be determined to be inconsistent with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in fiduciary obligations to the purchase price or form shareholders of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeunder applicable law.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five- (5) Business Day period, if applicableand negotiate in good faith with respect thereto during such five- (5) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors advisor, that the terms of the Superior Offer are more favorable to the stockholders of the Company than the Merger (taking into account as it may be adjusted pursuant to paragraph (iv) above) and (B) after consultation with outside legal advisorscounsel, the failure to effect a Change of Recommendation would result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable Law; and
(vi) the Company shall not have breached any of the provisions set forth in Section 5.2 or this Section 5.3. In addition, the Board of Directors of the Company may withdraw, modify or fail to make, in a manner adverse to Parent or Merger Sub, the recommendation of the Board of Directors of the Company in favor of the adoption and approval of this Agreement and the approval of the Merger in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement) that was not known to the Board of Directors of the Company nor reasonably foreseeable by the Board of Directors of the Company as of or prior to the date of this Agreement (and not relating in any way to any Acquisition Proposal) (an “Intervening Recommendation Change” and such material fact, change, development or set of circumstances, an “Intervening Event”), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined of the Company determines in good faith, after considering the results consultation with outside legal counsel, that, in light of such negotiations and giving effect to Intervening Event, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors of the Company to effect such an Intervening Recommendation Change would be reasonably likely to result in a breach of its good faith judgment determines (after consultation with its financial advisors fiduciary duties under applicable Law; provided that no fact, event, change, development or set of circumstances shall constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Merger; and outside legal advisors) provided, further, that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice not be entitled to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines exercise its rights to make an Adverse Intervening Recommendation Change pursuant to this Section 5.4(d), sentence unless the procedures referred to in clauses Company has (A)) provided to Parent at least four (4) Business Days prior written notice advising Parent that the Board of Directors of the Company intends to take such action and specifying the facts underlying the determination of the Board of Directors of the Company that an Intervening Event has occurred, an the reasons for the Intervening Recommendation Change, in reasonable detail, and (B) during such four (4) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend the Agreement in such a manner that obviates the need for a Intervening Recommendation Change. In the event that, subsequent to the date of this Agreement and (C) above prior to the meeting of the Company stockholders, there shall apply anew and have been a Change of Recommendation unless this Agreement is terminated by the Company or Parent, as the case may be, pursuant to Article VII, the Company shall also apply nevertheless submit this Agreement to any subsequent withdrawal, amendment or changethe stockholders of the Company for adoption.
Appears in 1 contract
Sources: Merger Agreement (Visa Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.1(b), at any time prior to obtaining the Company Required Stockholder Approval, the board of directors of the Company may, solely in response to a Superior Proposal, make a Change of Recommendation and terminate this Agreement in accordance with Section 9.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company’s Board board of Directors maydirectors shall have (A) delivered to Parent written notice (a “Change of Recommendation Notice”) at least five (5) Business Days prior to informing the stockholders of the Company of, if it concludes or publicly effecting, such Change of Recommendation in good faith response to a Superior Proposal which shall state expressly (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Proposal, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Superior Proposal and the identity of the Person or group making the Superior Proposal along with any documents delivered to the Company, or any of its Agents, by such Person or group in connection with such proposal, and (3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provide to Parent a copy of all materials and information delivered or made available to the Person or group making the Superior Proposal in connection with a Superior Proposal (to the extent not previously delivered or made available to Parent), and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Superior Proposal would no longer be a Superior Proposal;
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s board of directors has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and its financial adviser) results in the Alternative Transaction Proposal and other information requested that had been determined to be provided a Superior Proposal no longer being a Superior Proposal;
(iv) the board of directors of the Company has concluded in good faith, after receipt of advice from and consultation with respect thereto its outside legal counsel, that, in light of such Superior Proposal and after considering any adjustments or negotiations pursuant to this Section 5.4the preceding clause (ii), including that the information Company’s board of directors is required to be provided pursuant effect a Change of Recommendation to Section 5.4(b) and comply with its fiduciary obligations to the stockholders of the Company under the DGCL; and
(c), (Bv) the Company shall have given Parent previously complied with, and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice continues to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Periodcomply with, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent provisions set forth in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.2.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Harmonic Inc)
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that during the Pre-Closing Period, neither the CoLucid Board nor any committee thereof shall (i)(A) fail to make, withhold, withdraw (or modify in a manner adverse to Lilly), or publicly propose to withdraw (or modify in a manner adverse to Lilly) the CoLucid Board’s recommendation to CoLucid stockholders to accept the Offer and tender their Shares pursuant to the Offer (the “Company Board Recommendation”) or (B) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”); (ii) fail to publicly reaffirm the Company Board Recommendation within ten business days after ▇▇▇▇▇ so requests in writing; or (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow CoLucid to execute or enter into any contract with respect to, any Takeover Proposal (other than an Acceptable Confidentiality Agreement). The Merger Agreement provides that, notwithstanding anything to the contrarycontrary contained in the Merger Agreement, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time, if: (i) CoLucid has received a bona fide written Takeover Proposal (which Takeover Proposal did not result from or arise out of or in connection with a breach of Section 6.6 of the Merger Agreement) from any person that has not been withdrawn and, after consultation with outside legal counsel and the CoLucid Board’s financial advisor, the Company’s CoLucid Board of Directors may, if it concludes and the CoLucid Special Committee have determined in good faith that such Takeover Proposal is a Superior Proposal (after consultation with its financial advisors and outside legal advisorsgiving effect to all of the revisions to the terms of the Merger Agreement which may be offered by Lilly, including pursuant to clause (C) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Lawbelow); or (ii) there has been an Intervening Event (defined below), make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of then (x) the decision of CoLucid Board or the Company’s Board of Directors CoLucid Special Committee prior to take such action and the reasons therefor and Acceptance Time may make a Company Adverse Change Recommendation or (y) in the event the decision relates to an Alternative Transaction case of a Superior Proposal, a summary CoLucid may terminate the Merger Agreement in accordance with Section 8.1(d) of the material terms and conditions of the Alternative Transaction Proposal and other information requested Merger Agreement in order to be provided enter into a Specified Agreement (defined below) with respect thereto pursuant to this Section 5.4such Superior Proposal, including in the information required to be provided pursuant to Section 5.4(bcase of each of clauses (i) and (cii), if and only if: (BA) the Company shall have given Parent CoLucid Board and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall CoLucid Special Committee have determined in good faith, after considering consultation with outside legal counsel and the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anyCoLucid Board’s financial advisor, that such Alternative Transaction Proposal, if applicable, continues the failure to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during do so would be inconsistent with the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, CoLucid Board’s and the CompanyCoLucid Special Committee’s Board fiduciary duties to CoLucid’s stockholders Table of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.Contents
Appears in 1 contract
Sources: Offer to Purchase (Lilly Eli & Co)
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that during the Pre-Closing Period, neither the TubeMogul Board nor any committee thereof shall: (i)(A) withdraw (or modify in a manner adverse to Adobe or Purchaser), or publicly propose to withdraw (or modify in a manner adverse to Adobe or Purchaser), the Company Board Recommendation or (B) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal (any action described in this clause (i) being referred to as a "Company Adverse Change Recommendation"); (ii) fail to publicly reaffirm its recommendation of the Merger Agreement within ten business days after Adobe so requests in writing, provided that, unless a Takeover Proposal will have been publicly disclosed, Adobe may only make such request once every 30 days; (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow TubeMogul to execute or enter into any contract with respect to any Takeover Proposal, or requiring, or reasonably expected to cause, TubeMogul to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated by the Merger Agreement (other than an Acceptable Confidentiality Agreement) or (iv) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer by a third party, other than a recommendation against such offer or a "stop, look and listen" communication by the TubeMogul Board (or a committee thereof) to the contrarystockholders of TubeMogul pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) (it being understood that the TubeMogul Board (or a committee thereof) may refrain from taking a position with respect to a Takeover Proposal until the close of business on the tenth business day after the commencement of a tender or exchange offer in connection with such Takeover Proposal without such action being considered a violation of this paragraph). The Merger Agreement provides that, notwithstanding anything to the contrary contained in the Merger Agreement, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time: • if TubeMogul has received a bona fide written Takeover Proposal (which Takeover Proposal did not result from or arise out of a breach of the non-solicitation obligations contained in the Merger Agreement) from any person that has not been withdrawn and, the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel and financial advisor, the TubeMogul Board has determined, in good faith, that such Takeover Proposal is a Superior Proposal, then (x) the TubeMogul Board may make a Company Adverse Change Recommendation, or (y) TubeMogul may terminate the Merger Agreement and enter into a Specified Agreement (as defined in below) with respect to such Superior Proposal, if and only if: (A) the TubeMogul Board shall have determined in good faith, after consultation with TubeMogul's outside legal counsel, that the failure to take such action do so would be inconsistent with its fiduciary duties to TubeMogul's stockholders under applicable Law, make an Adverse Recommendation Changelaw or regulation; provided that prior to any such Adverse Recommendation Change, (AB) the Company TubeMogul shall have given Parent and Merger Sub prompt Adobe prior written notice advising them of (xits intention to make a Company Adverse Change Recommendation or terminate the Merger Agreement pursuant to Section 8.1(e)(i) the decision of the Company’s Board Merger Agreement, in each case, with respect to such Superior Proposal (a "Superior Proposal Determination Notice") (which notice shall have included a copy of Directors to take such action and the reasons therefor and definitive Specified Agreement (in the case of clause "(y) in )"), the event identity of the decision relates to an Alternative Transaction Proposal, person making such Superior Proposal and a summary of the material terms and conditions of the Alternative Transaction Superior Proposal) at least four business days prior to making any such Company Adverse Change Recommendation or termination (which notice will not constitute a Company Adverse Change Recommendation) (the "Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) Notice Period"); and (c), C) (B1) during the Company shall have given Parent and Merger Sub three (3) Business Days (the “Superior Proposal Notice Period”) after delivery of each such notice to , Adobe may propose revisions to the terms of this the Merger Agreement (or make another proposal) and, during the Notice Period, the Company shallother proposals so that such Takeover Proposal would cease to constitute a Superior Proposal, and TubeMogul shall direct have made its financial advisors and outside legal advisors representatives available to, negotiate with Parent and negotiated in good faith (with, Adobe with respect to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatproposed revisions or other proposals, if applicableany, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryperiod, and (C2) after the Company’s Board end of Directors shall have determined in good faithsuch period, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger SubAdobe, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel and financial advisor, the TubeMogul Board shall have determined, in good faith, (I) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Takeover Proposal still is a Superior Proposal shall and (II) that the failure to make the Company Adverse Change Recommendation or terminate the Merger Agreement pursuant to Section 8.1(e)(i) of the Merger Agreement would be deemed a material revision)inconsistent with its fiduciary duties to TubeMogul's stockholders under applicable law or regulation (for the avoidance of doubt, the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) provisions of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall will also apply to every material amendment to any subsequent withdrawal, amendment or change.Takeover Proposal and require that
Appears in 1 contract
Change of Recommendation. Notwithstanding anything The Company Board or any committee thereof shall not withhold, withdraw, amend or modify in this Agreement a manner adverse to Parent its recommendation to the contrary, at any time prior to obtaining Company's shareholders in favor of the Company Stockholder Approval, Shareholder Approval for any reason (a "Change of Recommendation") unless:
(i) the Company’s Board of Directors may, if it concludes Company Shareholder Approval has not yet been obtained;
(ii) a Superior Offer is made to the Company that is not withdrawn and is determined in good faith (after consultation with its financial advisors and outside legal advisors) that by the failure to take such action would be inconsistent with its fiduciary duties under applicable LawCompany Board, make an Adverse Recommendation Change; provided that immediately prior to any adopting a resolution to effect a Change of Recommendation, to be a Superior Offer;
(iii) such Adverse Recommendation Change, Superior Offer shall not have arisen from a material breach of the solicitation restrictions set forth in Section 5.3(a) or was not otherwise submitted as a result of a violation of Section 5.3(a);
(Aiv) the Company shall have given provided to Parent and Merger Sub prompt twenty-four (24) hours prior written notice advising them (a "Section 5.3(d) Notice") of (x) the decision any meeting of the Company’s Company Board at which the Company Board intends to consider effecting a Change of Directors Recommendation in response to take an Acquisition Proposal, together with a copy of the draft definitive written agreement relating to such action Acquisition Proposal and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary identity of the material terms and conditions of Person or Group making such Acquisition Proposal;
(v) during the Alternative Transaction Proposal and other information twenty-four (24) hour period referred to in subclause (iv) above, if requested to be provided with respect thereto pursuant to this Section 5.4by Parent, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent engaged in good faith (negotiations with Parent to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of amend this Agreement so that, if applicable, in such Alternative Transaction a manner that the Acquisition Proposal ceases referred to constitute in subclause (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), iv) above shall not be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material Offer (it being understood that any change in, or addition of, material terms or conditions set forth in the purchase price or form draft definitive agreement relating to the Acquisition Proposal referred to in subclause (iv) above shall require a new Section 5.3(d) Notice to Parent and a new twenty-four (24) hour period under this subclause (v)); and
(vi) the Company Board has concluded in its good faith, reasonable judgment, after consultation with its outside legal counsel, that, in light of consideration in such Superior Proposal shall Offer (respecting which the Company has been provided a Section 5.3(d) Notice), that the failure of the Company Board to effect a Change of Recommendation would reasonably be deemed expected to result in a material revision)breach of its fiduciary duties to the Company's shareholders under applicable Legal Requirements. In addition, and notwithstanding any provision to the contrary in this Section 5.3, at any time prior to the time the Company Shareholder Approval has been obtained, the Company shall deliver Board may, in response to a new written notice material development or change in material circumstances occurring or arising after the Agreement Date, the existence and material consequences of which were neither known nor reasonably foreseeable by the Company Board at or prior to Parent the Agreement Date (and shall comply not relating to any Acquisition Proposal) (such material development or change in circumstances, an "Intervening Event"), make a Change of Recommendation if the Company Board has in good faith determined, after consultation with its outside legal counsel, that, in light of such Intervening Event, the requirements failure of this Section 5.4(d) with respect the Company Board to effect such new written notice except that the new Notice Period shall a Change of Recommendation would reasonably be two (2) Business Days instead expected to result in a breach of three (3) Business Days and (2) in the event its fiduciary duties to the Company’s 's shareholders under applicable Legal Requirements; provided that, the Company Board of Directors does shall not make the determination referred be entitled to in clause (C) of this paragraph but thereafter determines exercise its right to make an Adverse a Change of Recommendation Change pursuant to this Section 5.4(d), sentence unless the procedures referred Company has (x) provided to Parent at least three Business Days' prior written notice (unless the Intervening Event arises fewer than three Business Days prior to the Company Shareholders Meeting in clauses (A), (Bwhich case such notice shall be given as promptly as practicable) advising Parent that the Company Board intends to take such action and specifying the reasons therefor in reasonable detail and (Cy) above shall apply anew and shall also apply during such three Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to any subsequent withdrawal, amendment or changeamend this Agreement in such a manner that obviates the need for a Change of Recommendation as a result of the Intervening Event.
Appears in 1 contract
Sources: Merger Agreement (Synplicity Inc)
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that, except as provided below, neither the Company Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this Agreement to subsection entitled “Change of Recommendation” or any other provisions of the contraryMerger Agreement, at any time prior to obtaining the Acceptance Time, the Company Stockholder ApprovalBoard, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Company’s Company Board of Directors may, if it concludes determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel to the Company Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable Law, law. The Merger Agreement provides that the Company Board will not be permitted to make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Change or terminate the Merger Agreement under the Fiduciary Termination Provision (Aas defined below) unless: • the Company shall have given promptly notifies Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub writing at least three (3) Business Days business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”) after delivery ), of each its intention to do so; • the Company attaches to such notice to propose revisions to the most current version of the proposed agreement or a reasonably detailed summary of all material terms of this Agreement any such Superior Proposal (which version or make another proposalsummary will be updated on a prompt basis) and, and the identity of the third party making the Superior Proposal; • during the Notice Period, if requested by Parent, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this the Merger Agreement so that, if applicable, that such Alternative Transaction Acquisition Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal orProposal, if the Adverse Recommendation Change does not involve an Alternative Transaction ProposalParent, in its discretion, proposes to make such adjustments adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three business days remain in the terms Notice Period subsequent to the time the Company notifies Parent of any such material revision; and conditions of this Agreement so • Parent does not make, within the Notice Period, an offer that such Adverse Recommendation Change is otherwise not necessary, and (C) determined by the Company’s Company Board of Directors shall have determined in good faith, after considering consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the results stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any Table of Contents way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such negotiations and giving Intervening Event, the failure of the Company Board to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such an Adverse Recommendation Change is otherwise still requiredwould be a breach of its fiduciary duties under applicable law; provided further thatthat no fact, (1) event, change, development or set of circumstances will constitute an Intervening Event if during such fact, event, change, development or set of circumstances resulted from or arose out of the Notice Period described in clause (B) announcement, pendency or consummation of this paragraph any revisions are made to the Superior ProposalOffer or the Merger; and provided, if applicablefurther, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice Board will not be entitled to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines exercise its right to make an Adverse Recommendation Change pursuant to this Section 5.4(d), for an Intervening Event unless the procedures referred to in clauses Company Board has (A)) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Parent, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) business days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations. The Merger Agreement provides that, in connection with the continuing operation of the business of the Company and its Subsidiaries, from the date of the Merger Agreement until the Effective Time, subject to applicable law, the executive officers of the Company will consult with Parent in good faith on a reasonable and prompt basis to report material (individually or in the aggregate) operational developments, the status of relationships with customers, resellers, partners, suppliers, licensors, licensees, distributors and others having material business relationships with the Company, the status of ongoing operations and other matters reasonably requested by Parent pursuant to procedures reasonably requested by Parent; provided that no such consultation will affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under the Merger Agreement. In addition, the Merger Agreement provides that the Company will promptly notify Parent of any written notice or other written communication (or, to the knowledge of the Company, any other notice or communication) from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by the Merger Agreement, any notice or other communication from any governmental authority in connection with the transactions contemplated by the Merger Agreement, any Proceeding commenced or, to the Knowledge of the Company (as defined in the Merger Agreement), threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that would have been required to have been disclosed pursuant to the Merger Agreement or which relates to the consummation of the transactions contemplated by the Merger Agreement, any written notice or other written communication (or, to the Knowledge of the Company, any other notice or communication) from any major customer or major supplier that such major customer or major supplier is terminating its relationship with the Company or any of its Subsidiaries as a result of the Table of Contents transactions contemplated by the Merger Agreement or any inaccuracy of any representation or warranty or breach of covenant or agreement in the Merger Agreement that would reasonably be expected to cause any of the Offer Conditions not to be satisfied. The Merger Agreement provides that, subject to certain limitations on premiums, for six years after the Effective Time, Parent will, or will cause the Surviving Corporation to, maintain and extend all existing officers’ and directors’ liability insurance of the Company (or equivalent prepaid “tail” or “runoff” policies obtained prior to the Effective Time) with respect to acts or omissions occurring prior to the Effective Time covering each Person covered as of the date of the Merger Agreement by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of the Merger Agreement; provided that neither Parent nor Purchaser shall be obligated to pay annual premiums in excess of 200% of the amount the Company paid for its officers’ and directors’ liability insurance policy. The Merger Agreement provides that, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurred, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company and its Subsidiaries to: (i) each indemnification agreement disclosed pursuant to the Merger Agreement with any person who is now, or has been at any time prior to the date of the Merger Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (an “Indemnified Party”); and (Cii) above shall apply anew any indemnification provision and shall also apply any exculpation provision set forth in the certificate of incorporation or bylaws of the Company as in effect on the date of the Merger Agreement, subject in each case to any subsequent withdrawal, amendment limitations imposed by the certificate of incorporation or changebylaws of the Company as in effect on the date of the Merger Agreement and as imposed from time to time under applicable law. The Merger Agreement provides that the obligations of Parent and the Surviving Corporation under the provisions of the Merger Agreement which are summarized in this paragraph will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the written consent of such Indemnified Party and that the Indemnified Parties will be third-party beneficiaries of those provisions and entitled to enforce the covenants contained in those provisions.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Change of Recommendation. Notwithstanding anything Neither the ▇▇▇▇ III Board nor any committee thereof shall (a) withhold, withdraw, modify or qualify (in this Agreement each case in a manner adverse to the contrary, at any time prior to obtaining the Company Stockholder ApprovalSponsors), the Company’s Recommendation or (b) fail to include the Recommendation in the Proxy Statement (any such action being referred to as a “Change of Recommendation”), unless (i) the ▇▇▇▇ III Board of Directors may, if it concludes or the Special Committee determines in good faith (faith, after consultation with its financial advisors advisor, and receipt of an opinion of outside legal advisors) counsel, that the failure to take such action do so would be inconsistent with its the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; (ii) the ▇▇▇▇ III Board shall have provided prior written notice to the Sponsors, at least three Business Days in advance of such Change of Recommendation, that the ▇▇▇▇ III Board or the Special Committee intends to effect a Change of Recommendation, which notice shall specify, in reasonable detail the basis for the Change of Recommendation, (iii) after providing such notice, and prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action Special Committee and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal▇▇▇▇ III Board effecting such Change of Recommendation, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company ▇▇▇▇ III shall, and shall direct cause its financial advisors and outside legal advisors Representatives to, negotiate with Parent the Sponsors in good faith (to the extent Parent desires the Sponsors desire to negotiate) during such three Business Day period to make such any adjustments in to the terms and conditions of this Agreement so thatas would permit the Special Committee and the ▇▇▇▇ III Board not to effect a Change of Recommendation, and (iv) the Special Committee shall have considered in good faith any changes to this Agreement that may be offered in writing by the Sponsors before 5:00 P.M. Pacific time on the third Business Day of such three Business Day period in a manner that would form a binding contract if applicableaccepted by ▇▇▇▇ III, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsand shall have determined, after consultation with its financial advisors advisor and outside legal advisors)counsel, that failure of the ▇▇▇▇ III Board or the Special Committee to effect a Superior Proposal orChange of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law, even if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, such changes were to make such adjustments be given effect; provided that in the terms and conditions event of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form circumstances giving rise to the Change of consideration in such Superior Proposal Recommendation, ▇▇▇▇ III shall be deemed a material revision), the Company shall required to deliver a new written notice to Parent the Sponsors and shall to comply with the requirements of this Section 5.4(d) 8.9 with respect to such new written notice notice, except that in such case the new Notice Period three Business Day period referenced to above shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeDays.
Appears in 1 contract
Sources: Contribution Agreement (Griffin-American Healthcare REIT III, Inc.)
Change of Recommendation. (a) Notwithstanding any other provision of this Agreement to the contrary, from the date of this Agreement until 11:59 p.m. New York City time on the date which is forty (40) days after the date of this Agreement (the "Go-Shop Period End Date"), the Company and its Subsidiaries and their respective directors, officers, employees, advisors, representatives or agents (collectively, "Representatives") shall have the right (acting under the direction of the Special Committee) to directly or indirectly (i) initiate, solicit and encourage Alternative Transaction Proposals from any third Party, including by way of public disclosure and by way of providing access to non-public information to any Person (each a "Solicited Person") pursuant to one or more customary confidentiality agreements containing terms at least as restrictive with respect to such Solicited Person as the terms contained in Section 9.9 are with respect to Parent; provided, that the Company shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries that it has provided to any Solicited Person given such access which was not previously provided to Parent; and (ii) enter into and maintain discussions or negotiations with respect to Alternative Transaction Proposals or otherwise cooperate with, assist or participate in, facilitate, or take any other action in connection with any such inquiries, proposals, discussions or negotiations. The Company shall immediately cease any discussions with any Person (other than Parent and any Excluded Party) that are ongoing as of the Go-Shop Period End Date and that relate, or may reasonably be expected, to lead to an Alternative Transaction Proposal, except as otherwise expressly provided in Sections 6.6(b) and 6.6(c). The Company agrees that, after the Go-Shop Period End Date until the earlier of the Effective Time or the date on which this Agreement is terminated pursuant to Section 8.1 hereof, it shall not, nor shall it authorize or permit any of its Subsidiaries or any of its or their respective Representatives to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly induce an Alternative Transaction Proposal; (ii) provide any material non-public information concerning the Company or its Subsidiaries to any Person in connection with an Alternative Transaction Proposal; or (iii) engage in any discussions or negotiations with any third Party concerning an Alternative Transaction Proposal. Notwithstanding the foregoing, the Company may take and continue to take any of the actions described in Section 6.6(a) and, subject to Section 6.6(d), from and after the Go-Shop Period End Date with respect to any Solicited Person that, prior to the Go-Shop Period End Date, has made a bona fide Alternative Transaction Proposal that the Company Board and the Special Committee determines in good faith (after consultation with the Company's outside financial and legal advisors) no later than the Go-Shop Period End Date, constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an "Excluded Party"). Immediately after the Go-Shop Period End Date, other than with respect to Persons who at the Go-Shop Period End Date are Excluded Parties, the Company agrees that it shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing discussions or negotiations with any third party conducted heretofore with respect to any Alternative Transaction Proposal (except with respect to the transactions contemplated by this Agreement).
(b) Notwithstanding anything to the contrary contained in Section 6.6(a), in the event that, from the Go-Shop Period End Date to the receipt of Stockholder Approval, the Company receives an unsolicited written Alternative Transaction Proposal, then the Company may take the following actions:
(i) contact the Person who has made such Alternative Transaction Proposal to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such Alternative Transaction Proposal constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) furnish information concerning the Company and its Subsidiaries to the Person making such Alternative Transaction Proposal (and its respective Representatives) pursuant to a customary confidentiality agreement containing terms at least as restrictive with respect to such Person as the terms contained in Section 9.9 are with respect to Parent; and
(iii) engage in discussions or negotiations (including, as a part thereof, making counterproposals) with such Person (and its Representatives) with respect to such Alternative Transaction Proposal; provided, however, that the Company shall promptly (and in any event, within twenty-four (24) hours) provide or make available to Parent any material non-public information concerning the Company or any of the Subsidiaries that is provided to the Person making such Alternative Transaction Proposal or its Representatives which was not previously or concurrently provided or made available to Parent; provided that prior to taking any action described in Section 6.6(b)(ii) or Section 6.6(b)(iii) above, the Special Committee shall have determined in good faith (after consultation with the Company's outside financial and legal advisors) that such Alternative Transaction Proposal constitutes or could reasonably be expected to result in a Superior Proposal.
(c) Following the Go-Shop Period End Date, the Company shall promptly (and in any event within thirty-six (36) hours) advise Parent, orally or in writing, of (i) any Alternative Transaction Proposal, (ii) any initial request for non-public information concerning the Company or any of its Subsidiaries related to, or from any Person or group who would reasonably be expected to make an Alternative Transaction Proposal or (iii) any initial request for discussions or negotiations related to any Alternative Transaction Proposal, in each case of this clause (i), (ii) and (iii) received after the Go-Shop Period End Date, and in connection with such notice, provide the material terms and conditions thereof and the identity of the Person making such Alternative Transaction Proposal or request. The Company shall keep Parent informed in all material respects of the status and details (including material amendments to the terms thereof) of such Alternative Transaction Proposal or request received after the Go-Shop Period End Date.
(d) Except as otherwise provided in this Agreement, the Company Board shall not (i) (A) withdraw (or modify in a manner adverse to Parent and Merger Sub), or propose publicly to withdraw (or modify in a manner adverse to Parent and Merger Sub), the Company Board Recommendation or (B) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Alternative Transaction Proposal (any action in this clause (i) being referred to as a "Change of Recommendation") or (ii) adopt, approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement constituting or related to, or that would reasonably be expected to result in, any Alternative Transaction Proposal (other than a confidentiality agreement referred to in Section 6.6(a)(i)). Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company receipt of Stockholder Approval, (A) if the Company’s Board of Directors may, if it concludes Special Committee determines in good faith (after consultation with its financial advisors and the Company's outside legal advisors) that the failure to take such action do so would be inconsistent with its fiduciary duties under applicable Law, then the Company Board, acting upon the unanimous recommendation of the Special Committee, may make a Change of Recommendation and terminate this Agreement in accordance with Section 8.1(d)(ii); and (B) if the Company Board determines in good faith (after consultation with the Company's outside financial and legal advisors) that an Adverse Alternative Transaction Proposal which did not result from a breach of Section 6.6(b) constitutes a Superior Proposal, then the Company may enter into a definitive written agreement with respect to such Superior Proposal and terminate this Agreement in accordance with Section 8.1(d)(ii).
(e) The Company shall not be entitled to effect a Change of Recommendation Change; provided that prior to any such Adverse Recommendation Change, or terminate this Agreement as permitted under Section 6.6(d) unless (Ai) the Company shall have given has provided written notice (a "Notice of Superior Proposal") at least five (5) Business Days in advance to Parent and Merger Sub prompt advising Parent that the Company Board intends to make a Change of Recommendation or enter into a definitive written notice advising them agreement with respect to such Superior Proposal, as applicable, and specifying the reasons therefor, including in the case of (x) a Superior Proposal the decision terms and conditions of such Superior Proposal that is the basis of the Company’s proposed action by the Company Board (including the identity of Directors to take such action the third party making the Superior Proposal and the reasons therefor and any financing materials related thereto, if any), (yii) in the event the decision relates with respect to an Alternative Transaction ProposalProposal received after the Go-Shop Period End Date, the Company has provided a summary Notice of Superior Proposal to Parent, and during the five (5) Business Day period following Parent's and Merger Sub's receipt of the material terms and conditions Notice of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodSuperior Proposal, the Company shall, and shall direct cause its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent desires and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing Documents so that, if applicable, that such Alternative Transaction Superior Proposal ceases to constitute a Superior Proposal; and (in iii) following the judgment end of the Company’s five (5) Business Day period, the Company Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors Special Committee shall have determined in good faith, after considering taking into account any changes to this Agreement and the results terms of such negotiations and giving effect to the proposals made Financing proposed in writing by Parent and Merger Sub, if anySub in response to the Notice of Superior Proposal or otherwise, that such Alternative Transaction Proposal, if applicable, the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made Proposal. Any material amendment to the Superior Proposal, if applicable, and the Company’s Board financial terms or any other material amendment of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed require a material revision), new Notice of Superior Proposal and the Company shall deliver a new written notice be required to Parent and shall comply again with the requirements of this Section 5.4(d6.6(f); provided that references above in this Section 6.6(f) with respect to such new written notice except that the new Notice Period shall be two five (25) Business Days instead of shall be change to references to three (3) Business Days Days.
(f) Nothing in this Agreement shall restrict the Company from issuing a "stop, look and (2listen" communication pursuant to Rule 14d-9(f) in promulgated under the event Exchange Act or taking or disclosing to its stockholders any position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to its stockholders to comply with applicable Law; provided that, subject to the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this 's right under Section 5.4(d6.6(d), the procedures referred Company Board shall expressly reaffirm the Company Board Recommendation in such disclosure.
(g) As used in this Agreement, the following terms shall have the following meanings:
(i) As used in this Agreement, the term "Alternative Transaction Proposal" means any proposal or offer made by any Person (other than Parent, Merger Sub or any Affiliate thereof) to purchase or otherwise acquire, directly or indirectly, in clauses one transaction or a series of transactions, (A)) beneficial ownership (as defined under section 13(d) of the Exchange Act) of fifteen percent (15%) or more of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer, exchange offer or similar transaction or (B) any one or more assets or businesses of the Company and its Subsidiaries that constitute fifteen percent (C15%) above shall apply anew or more of the revenues or assets of the Company and shall also apply to any subsequent withdrawalits Subsidiaries, amendment or changetaken as a whole.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Parent or the Company, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company or Parent, as the case may be, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(2) In the case of Parent, its stockholders have not approved the Share Issuance, and in good faith the case of the Company, its stockholders have not adopted this Agreement;
(after consultation 3) It shall have provided the other party hereto with written notice of its financial advisors and outside legal advisorsintention to effect a Change of Recommendation (a “Change of Recommendation Notice”) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that at least two business days prior to any such Adverse Recommendation Changeeffecting a Change of Recommendation, which shall state expressly
(A) the Company shall have given Parent and Merger Sub prompt written notice advising them of that it has received a Superior Offer, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) After delivering the Change of Recommendation Notice, (B) the Company it shall have given Parent and Merger Sub three (3) Business Days (provided the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate other party hereto with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by the Companyother party for the purpose of enabling such party’s Board of Directors shall have determined to proceed with its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, without effecting a Change of Recommendation;
(5) Its Board of Directors has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior Proposal breach of its fiduciary obligations to its stockholders under applicable Legal Requirements; and
(6) It shall not have breached in any material respect any of the provisions set forth in Section 5.2 or that such Adverse Recommendation Change is otherwise still required; provided further that, this Section 5.3 (1) if during the Notice Period described in including clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revisionSection 5.3(c)(i), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or a Superior Offer (which shall be two (2subject to Section 5.3(d)(i) Business Days instead of three (3) Business Days and (2) not subject to this Section 5.3(d)(ii)), nothing in this Agreement shall prohibit or restrict the event the Company’s Board of Directors does of the Company or Parent, as the case may be, from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that such party shall send to the other party hereto written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Board of Directors of the Company or Parent, as the case may be, shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Merger Agreement
Change of Recommendation. Notwithstanding anything in this Agreement Subject to the contraryprovisions of Section 5.5 and this Section 5.1, at any time in response to the receipt of a Superior Proposal prior to obtaining the Company Stockholder Stockholders’ Approval, (x) the Company Board or a committee thereof may withhold, withdraw, amend or modify the Company Board Recommendation in favor of the Merger, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to the Company Stockholders, may recommend that the Company Stockholders accept the tender or exchange offer, or (y) the Company Board may approve, endorse, or recommend any Superior Proposal (any of the foregoing actions in clauses (x) and (y), an “Alternative Transaction Recommendation”), if all of the following conditions in clauses (i) through (viii) are met:
(i) Company shall have delivered to Parent written notice at least 48 hours prior to any meeting of the Company Board or a committee thereof at which the Company Board or committee is reasonably expected to consider declaring a Superior Proposal or effecting an Alternative Transaction Recommendation;
(ii) the Company Board determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Proposal has been made and not withdrawn;
(iii) that the failure Company Stockholders have not approved this Agreement in accordance with Applicable Laws;
(iv) Company shall have delivered to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Parent written notice (a “Change of Recommendation Change; provided that Notice”) at least five business days prior to any publicly effecting such Adverse Alternative Transaction Recommendation Change, which shall state expressly (A) the that Company shall have given Parent and Merger Sub prompt written notice advising them of has received a Superior Proposal, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Superior Proposal, (C) the identity of the Person or group making the Superior Proposal and (D) that Company intends to effect an Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4Recommendation;
(v) after delivering the Change of Recommendation Notice, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent with Parent desires to negotiate) and provide Parent with a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such five business day period such that the Acquisition Proposal would no longer constitute a Superior Proposal and the Company Board could proceed with its recommendation to the Company Stockholders in favor of adoption of this Agreement without making an Alternative Transaction Proposal ceases to constitute Recommendation;
(in vi) the judgment of the Company’s Company Board of Directors, shall have determined (A) after consultation with its financial advisors advisor, that the terms of the Superior Proposal are more favorable to the Company Stockholders than the terms of the Merger (as it may be adjusted pursuant to paragraph (v) above) and (B) after consultation with outside legal advisors)counsel, a Superior Proposal or, if the Adverse Recommendation Change does not involve that an Alternative Transaction Proposal, Recommendation is necessary for the Company Board to make such adjustments comply with its fiduciary duties to Company and the Company Stockholders under Applicable Laws;
(vii) Company shall not have breached any of the provisions set forth in Section 5.5 or this Section 5.1; and
(viii) Company shall have used all commercially reasonable efforts to mail the terms and conditions Proxy Statement/Prospectus to the Company Stockholders as promptly as practicable after the date of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeAgreement.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that, except as provided below, neither the NetSuite Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the NetSuite Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this Agreement to subsection entitled “Change of Recommendation” or any other provisions of the contraryMerger Agreement, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time, the Company’s NetSuite Board, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the NetSuite Board (upon the recommendation of Directors may, if it concludes the Transactions Committee) determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel to the NetSuite Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable Law, law. The Merger Agreement provides that the NetSuite Board will not be permitted to make an Adverse Recommendation Change; provided that prior to any such Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • NetSuite promptly notifies Parent (the “Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (yChange Notice”) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (A) after delivery of each such notice to propose revisions to the terms of this Agreement determination in itself by the NetSuite Board (or make another proposala committee thereof) andthat an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, during (B) the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with delivery in itself by NetSuite to Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board notifications required by Section 7.02(c) of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Merger Agreement or of an Table of Contents Adverse Recommendation Change does not involve an Alternative Transaction ProposalNotice, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and or (C) the Company’s Board public disclosure of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period matters described in clause (A) or (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make will constitute an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to (in each case of clauses (A), (B) and (C), to the extent in accordance with the Merger Agreement); • NetSuite attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) above shall apply anew and shall also apply the identity of the third party making the Superior Proposal; • during the Notice Period, if requested by Parent, NetSuite and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least three Business Days remain in the Notice Period subsequent to the time NetSuite notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the NetSuite Board (upon the recommendation of the Transactions Committee) in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of NetSuite as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the NetSuite Board (upon the recommendation of the Transactions Committee) may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the NetSuite Board nor reasonably foreseeable by the NetSuite Board as of the date of the Merger Agreement (and not relating in any way to any subsequent withdrawalAcquisition Proposal) (such material fact, amendment event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the NetSuite Board determines in good faith, after consultation with outside legal counsel to the NetSuite Board, that, in light of such Intervening Event, the failure of the NetSuite Board to effect such an Adverse Recommendation Change would be a breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the NetSuite Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the NetSuite Board has (A) provided to Parent at least five Business Days’ prior written notice advising Parent that the NetSuite Board intends to take such action and specifying the facts underlying the NetSuite Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, it being understood that neither (1) the delivery in itself by NetSuite to Parent of such notice, nor (2) the public disclosure of the matters described in clause (1), will constitute an Adverse Recommendation Change (in each case of clauses (1) and (2), to the extent in accordance with the terms of the Merger Agreement) and (B) during such five Business Day period, if requested by ▇▇▇▇▇▇, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the NetSuite Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the NetSuite Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two Business Days after requested to do so by Parent.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in SECTION 5.2(b) or SECTION 5.3, at any time prior in response to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, (x) the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a "CHANGE OF RECOMMENDATION"), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if it concludes all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith (faith, after consultation with its the Company's financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a "CHANGE OF RECOMMENDATION NOTICE") at least four Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such four-Business Day period, if applicableand negotiate in good faith with respect thereto during such four-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation could reasonably be expected to result in a breach of the Board of Directors' fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached in any material respect any of the requirements of provisions set forth in SECTION 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeSECTION 5.3.
Appears in 1 contract
Sources: Merger Agreement (Loudeye Corp)
Change of Recommendation. (i) Notwithstanding anything Section 5.2(b), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Verigy or LTX-Credence, as the case may be, may withhold, withdraw, amend, modify, qualify or condition in a manner adverse to the other its recommendation in favor of, in the case of Verigy, the approval of the Share Issuance, the Charter Amendment, and in the case of LTX-Credence, approval of this Agreement, in each case, in a manner adverse to the other party, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its shareholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Shareholders’ Meeting has not occurred;
(2) It shall have (A) provided the Company shall have given Parent and Merger Sub prompt other party hereto with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least five business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (cIII) that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that such notice and such statement shall not constitute a Change of Recommendation), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions provided to the terms other party hereto a copy of this Agreement (all materials and information delivered or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (made available to the extent Parent desires Person or group making the Superior Offer it has received and (C) provided the other party has the opportunity to negotiate) to make such adjustments in the terms meet and conditions discuss a modification of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that the transaction theretofore determined to be a Superior Offer no longer constitutes a Superior Offer;
(3) Either (A) on or before the expiration of the five business day period following the delivery to the other party hereto of any Change of Recommendation Notice, the other party hereto does not make a written offer, which shall be binding and enforceable against the other party and capable of acceptance by Verigy or LTX-Credence, as the case may be (a “Matching Bid”), in response to such Adverse Superior Offer, or (B) following receipt of a Matching Bid within the five business day period following the delivery to the other party hereto of any Change of Recommendation Change is otherwise not necessaryNotice, and (C) the Company’s Board of Directors of Verigy or LTX-Credence, as the case may be, determines in good faith (at a meeting of the Board of Directors of Verigy or LTX-Credence, as the case may be, at which it consults prior to such determination with its outside legal counsel and its financial advisor) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have determined materially breached any of the provisions set forth in Section 5.2 or this Section 5.3 (including Section 5.3(b)) in connection with such Acquisition Proposal.
(ii) In addition, and notwithstanding anything to the contrary set forth herein, at any time prior to obtaining, in the case of the shareholders of Verigy, approval of the Share Issuance, and the Charter Amendment, or in the case of the shareholders of LTX-Credence, the approval of this Agreement, the Board of Directors of LTX-Credence or Verigy, as the case may be, may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after considering the results consultation with its outside legal advisors, that, in light of such negotiations and giving Intervening Event, the failure of such Board of Directors to effect such a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; provided, however, that (A) such party shall send to the proposals made by Parent and Merger Subother party hereto written notice of its intention to effect a Change of Recommendation, if anyspecifying in reasonable detail the reasons therefor, that such Alternative Transaction Proposalat least five business days prior to effecting a Change of Recommendation, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) such party shall provide the other an opportunity to meet and discuss the basis for a Change of Recommendation, the other party’s reaction thereto and any possible modification to the terms and conditions of this paragraph any revisions are made Agreement in response thereto so that the transactions contemplated hereby may be effected and (C) after such discussions, the board of directors of the party proposing to the Superior Proposaltake such action concludes, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall failure to effect a Change of Recommendation would be two reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements.
(2iii) Business Days instead of three (3) Business Days and (2) in Neither the event the Company’s Board of Directors does not of LTX-Credence nor the Board of Directors of Verigy shall make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Merger Agreement (Verigy Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Sections 4.2(a), at any time prior 4.2(b) or 4.2(c), in response to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, (i) the Company’s Board of Directors mayof the Receiving Constituent Company may withhold, withdraw, amend or modify its recommendation in favor of the adoption and approval of this Agreement and the transactions contemplated hereby, and, may recommend in favor of a Superior Offer, and in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of such Receiving Constituent Company, may recommend that the stockholders of such Receiving Constituent Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of such Receiving Constituent Company or a committee thereof, a “Change of Recommendation”), (ii) such Receiving Constituent Company or its subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (iii) such Receiving Constituent Company or any of its subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisorsA) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (E) are met:
(A) the Board of Directors of such Receiving Constituent Company determines in good faith, after consultation with such Receiving Constituent Company’s financial advisor, if any, and outside legal counsel, that a Superior Offer has been made and not withdrawn;
(B) the stockholders of such Receiving Constituent Company have not previously adopted and approved this Agreement and the transactions contemplated hereby in accordance with applicable law;
(C) such Receiving Constituent Company shall have given Parent and Merger Sub prompt delivered to the other Constituent Companies written notice advising them (a “Change of Recommendation Notice”) at least four (4) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (w) that such Receiving Constituent Company has received a Superior Offer; (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material most recent terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer (and in the event such Receiving Constituent Company exercises its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b) and (c6.1(c), (B) the such Receiving Constituent Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions provide to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment other Constituent Companies a copy of the Company’s Board of Directors, after consultation final agreement to be entered into in connection with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines Offer); (after consultation with its financial advisors and outside legal advisorsy) that such revisions are material (it being understood that any change in the purchase price or form Receiving Constituent Company intends to effect a Change of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Recommendation; and (2z) in that such Receiving Constituent Company agrees to reimburse the event expenses of the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this other Constituent Companies as contemplated under Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.6.2;
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof LTX or Credence, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of LTX, the Share Issuance and the Charter Amendment, and in the case of Credence, adoption of this Agreement, in each case, in a manner adverse to the other party, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Stockholders’ Meeting has not occurred;
(2) It shall have (A) provided the Company shall have given Parent and Merger Sub prompt other party hereto with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least three business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)III) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, and (B) provided to the Company shall have given Parent other party hereto a copy of all materials and Merger Sub three information delivered or made available to the Person or group making the Superior Offer it has received;
(3) Business Days Either (A) on or before the “Notice Period”) after expiration of the three business day period following the delivery of each such notice to propose revisions to the terms other party hereto of this Agreement (or make another proposal) and, during the Notice Periodany Change of Recommendation Notice, the Company shallother party hereto does not make a written offer, which shall be binding and shall direct its financial advisors enforceable against the other party and outside legal advisors tocapable of acceptance by LTX or Credence, negotiate with Parent as the case may be (a “Matching Bid”), in response to such Superior Offer, or (B) following receipt of a Matching Bid within the three business day period following the delivery to the other party hereto of any Change of Recommendation Notice, the Board of Directors of LTX or Credence, as the case may be, determines in good faith (at a meeting of the Board of Directors of LTX or Credence, as the case may be, at which it consults prior to such determination with its outside legal counsel and its financial advisor) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have materially breached any of the provisions set forth in Section 5.2 or this Section 5.3 (including Section 5.3(b)).
(ii) In addition, and notwithstanding anything to the extent Parent desires contrary set forth herein, at any time prior to negotiate) to make such adjustments obtaining, in the terms case of the stockholders of LTX, approval of the Share Issuance and conditions the Charter Amendment, or in the case of the stockholders of Credence, the adoption of this Agreement so thatAgreement, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of DirectorsDirectors of Credence or LTX, as the case may be, may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof that was neither known to the Board of Director of such party nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after consultation with its financial advisors and outside legal advisors), a Superior Proposal orthat, if in light of such Intervening Event, the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make failure of such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined to effect such a Change of Recommendation would be reasonably likely to result in good faitha breach of its fiduciary duties under applicable Legal Requirements; provided, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anyhowever, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made party shall send to the Superior Proposalother party hereto written notice of its intention to effect a Change of Recommendation, if applicablespecifying in reasonable detail the reasons therefor, and at least three business days prior to effecting a Change of Recommendation.
(iii) Neither the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in of Credence nor the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not of LTX shall make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.02(d), at any time prior to obtaining the Acceptance Time, the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes subject to compliance in all material respects with the other provisions of this Section 6.02, (x) terminate this Agreement pursuant to Section 9.01(f) in order to enter into an Acquisition Agreement providing for a Superior Proposal, or (y) effect an Adverse Recommendation Change in response to an Intervening Event; provided that (1) the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, make (2) in the case of Section 6.02(e)(x), the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and the Company terminates this Agreement pursuant to Section 9.01(f), (3) the Company has provided prior written notice to Parent and Merger Sub, at least four (4) Business Days in advance, that it will take the applicable action referred to in Section 6.02(e)(x) or (y) and specifying in reasonable detail the reasons therefor (a “Notice of Intended Recommendation Change”) (which notice shall not itself constitute an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change), and (A4) the Company shall have given Parent and Merger Sub prompt written notice advising them of has complied in all material respects with the following additional covenants:
(xi) the decision of the Company’s Board of Directors to take if such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided is being taken pursuant to Section 5.4(b) and (c6.02(e)(x), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “if requested by Parent, after providing any such Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodIntended Recommendation Change, the Company shall, and shall direct instruct its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Merger Sub in good faith during any such four (to the extent Parent desires to negotiate4) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material Business Day period (it being understood and agreed that any change in material amendment to the purchase price or form terms of consideration in any such Superior Proposal (and in any event including any amendment to any price term thereof) shall be deemed a material revision), the Company shall deliver require a new written notice to Parent Notice of Intended Recommendation Change and shall comply compliance with the other requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.6.02
Appears in 1 contract
Sources: Merger Agreement
Change of Recommendation. Neither the Company Board nor any committee thereof shall (i) fail to make, withdraw or modify in a manner adverse to Parent, or publicly propose to withdraw or modify in a manner adverse to Parent, the Company Board Recommendation, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal or (iii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal (each of (i) and (iii), “Specified Conduct”). Notwithstanding anything in the provisions of Section 6.04(a) and the foregoing provisions of this Agreement to the contrarySection 6.04(g), at any time if, (x) prior to obtaining receipt of the Company Stockholder Approval, (A) the Company’s Company Board of Directors may, if it concludes shall have determined in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that compliance with the failure to take such action preceding sentence would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Law (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c“Fiduciary Determination”), (B) the Company Board has notified Parent in writing of the determination described in clause (A), which notice shall have given specify in reasonable detail the material events giving rise thereto (a “Determination Notice”), and (C) at least five (5) business days following receipt by Parent of the Determination Notice, and Merger Sub three (3) Business Days (taking into account any revised proposal made by Parent since receipt of the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodDetermination Notice, the Company shallBoard maintains its Fiduciary Determination, and shall direct its financial advisors and outside legal advisors toprovided, negotiate with that, during such period after receipt by Parent of such notice, the Company has, if requested by Parent, negotiated in good faith (with, and caused the Company’s financial and legal advisors to the extent negotiate in good faith with, Parent desires to negotiate) attempt to make such adjustments in the terms and conditions of this Agreement so as would enable the Company to proceed with the Transactions, or (y) at any time the Company Board shall have made a Fiduciary Determination in connection with a Tender Offer Communication, then the Company Board may (1) engage in any of the Specified Conduct (a “Change of Recommendation”), it being understood that, if applicablefor the avoidance of doubt, such Alternative Transaction Proposal ceases to constitute neither the approval or delivery of a Determination Notice shall be deemed a Change of Recommendation, and/or (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions 2) upon termination of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, in accordance with Section 8.01(h) and (C) concurrent payment of the Company’s Board of Directors shall have determined Termination Fee in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation accordance with its financial advisors and outside legal advisors) that such revisions are material Section 8.03 (it being understood and agreed that any change in the purchase price or form such termination shall not be effective until payment of consideration in such Superior Proposal shall be deemed a material revisionTermination Fee), approve and enter into an agreement relating to a Superior Proposal. Nothing in this Section 6.04 shall permit the Company shall deliver a new written notice to Parent and shall comply with terminate this Agreement except as specifically provided in Article VIII or affect any other obligation of the requirements of Company under this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeAgreement.
Appears in 1 contract
Change of Recommendation. (i) Except as permitted in this Section 5.4(d), the Board shall not (1) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify in a manner adverse to Globe the Recommendation, (B) take any action or make any public statement inconsistent with the Recommendation (it being understood that a statement required pursuant to applicable Legal Requirements to the effect that the Board is considering an Acquisition Proposal in accordance with the requirements of this Agreement and its fiduciary duties shall not be deemed to be inconsistent with the Recommendation), (C) prior to a tender or exchange offer for any securities of the Company being announced or commenced, fail to reaffirm or re-publish the Recommendation within ten (10) Business Days of being requested by Globe to do so (provided, however, that Globe shall not be entitled to request such a reaffirmation or re-publishing more than one (1) time with respect to any single Acquisition Proposal other than in connection with an amendment to any financial terms of such Acquisition Proposal or any other material amendment to such Acquisition Proposal), (D) if a tender or exchange offer for any securities of the Company is announced or commenced, fail to publicly announce that the Board recommends against acceptance of such tender or exchange offer by the shareholders of the Company within fourteen (14) days after such Person’s dispatch to the shareholders of the offer document as required under the Singapore Code; or (E) approve, adopt, authorize or recommend or otherwise declare advisable, or propose publicly to approve, authorize or recommend or otherwise publicly declare advisable, any Acquisition Proposal or any inquiry or proposal that could reasonably be expected to lead to any Acquisition Proposal (each such action set forth in clauses (A) through (E) above, a “Change of Recommendation”), (2) approve, adopt or authorize, or permit the Company or any of its Subsidiaries to enter into, an Acquisition Agreement or any other Contract requiring the Company to abandon, terminate, delay or fail to consummate the Acquisition or any other transaction contemplated by this Agreement, or (3) take any action (except as provided in Section 5.4(c)(iii) above) pursuant to which any Person (other than Globe, Acquiror or their respective Affiliates) or Acquisition Proposal would become exempt from or not otherwise subject to any Takeover Laws or certificate of incorporation provision relating to an Acquisition Proposal. For the avoidance of doubt, a change of the Recommendation to “neutral” is a Change of Recommendation.
(ii) Notwithstanding anything to the contrary in this Agreement Section 5.4(d), in response to the contraryreceipt of a Superior Offer that has not been withdrawn, the Board may make a Change of Recommendation, if and only if all of the following conditions in clauses (1) through (4) are met:
(1) The Company Shareholder Approval has not been obtained;
(2) It shall have (A) provided Globe with written notice of its intention to effect a Change of Recommendation (a “Change of Recommendation Notice”) at least five (5) Business Days prior to effecting a Change of Recommendation that relates to (i) a Superior Offer or (ii) any change to the terms of a Superior Offer (including any revision to price) to which a previous Change of Recommendation Notice applies (such applicable time period, a “Notice Period”), which notice shall state expressly (I) that it has received a Superior Offer, (II) the material terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer, and (III) that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that such notice and such statement shall not itself constitute a Change of Recommendation), (B) provided to Globe a copy of the most current draft of any written agreement providing for the transactions contemplated by such Superior Offer and any information relating to the Company or any of its Subsidiaries that has been provided or otherwise made available to the Person or group making the Superior Offer that has not also been provided or otherwise made available to Globe and (C) during such Notice Period, if requested by Globe, provided Globe with the opportunity to meet and engage in good faith negotiations with the Company regarding an amendment of the terms and conditions of this Agreement so that the transaction theretofore determined to be a Superior Offer no longer constitutes a Superior Offer;
(3) At or after 5:00 p.m., New York City time on the final Business Day during the applicable Notice Period, the Board reaffirms in good faith, following consultation with its outside legal counsel and its financial advisors, that (i) the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer after taking into consideration any amendment to this Agreement pursuant to this Section 5.4, if any, and (ii) the failure of the Board to effect a Change of Recommendation would be reasonably expected to be inconsistent with its fiduciary duties under applicable Legal Requirements; and
(4) It shall not have materially breached any of the provisions set forth in this Section 5.4 in connection with such Acquisition Proposal.
(iii) Notwithstanding anything to the contrary set forth herein, at any time prior to obtaining the Company Stockholder Shareholder Approval, the Company’s Board of Directors may, in response to a material event, fact, circumstance, development, change or occurrence that is unknown to the Board, or is not reasonably foreseeable to the Board, as of the date of this Agreement or, if it concludes known, the consequences of which were unknown or not reasonably foreseeable as of the date of this Agreement and does not result from, relate to, or arise out of an Acquisition Proposal, whether or not a Superior Offer, and is not the result of a material breach of this Agreement by the Company or any of its Subsidiaries (such material event, fact, circumstance, development, change or occurrence or the consequences of any of the foregoing, an “Intervening Event”), make a Change of Recommendation if the Board has concluded in good faith (faith, after consultation with its financial outside legal advisors and outside legal financial advisors) that , that, in light of such Intervening Event, the failure of the Board to take effect such action a Change of Recommendation would be reasonably expected to be inconsistent with its fiduciary duties under applicable LawLegal Requirements; provided, make however, that no event, fact, circumstance, development, change or occurrence that has had or would reasonably be expected to have an Adverse Recommendation Changeadverse effect on the business, condition (financial or otherwise) or continuing results of operations of, or the market price of the securities of, Globe or any of its Affiliates shall constitute an “Intervening Event”; provided and provided, further, that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt send to Globe written notice advising them of (x) the decision of the CompanyBoard’s Board intention to effect such a Change of Directors to take such action and Recommendation, specifying in reasonable detail the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary description of the material terms and conditions details of the Alternative Transaction Proposal and other information requested such Intervening Event, at least five (5) Business Days prior to be provided with respect thereto pursuant effecting a Change of Recommendation relating to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)such Intervening Event, (B) during such five-Business Day period, the Company shall have given Parent provide Globe with a reasonable opportunity to meet and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent discuss in good faith (the basis for a Change of Recommendation, Globe’s reaction thereto and any possible amendment to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement in response thereto so that, if applicable, such Alternative Transaction Proposal ceases that the failure to constitute (in the judgment effect a Change of the Company’s Board of Directors, after consultation Recommendation would no longer be reasonably expected to be inconsistent with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, fiduciary duties under applicable Legal Requirements and (C) at or after 5:00 p.m., New York City time on the Company’s final Business Day during the applicable Notice Period, the Board of Directors shall have determined reaffirms in good faith, after considering the results of such negotiations following consultation with its outside legal advisors and giving effect to the proposals made by Parent and Merger Sub, if anyfinancial advisors, that such Alternative Transaction Proposal, if applicable, continues the failure to constitute effect a Superior Proposal or that such Adverse Change of Recommendation Change is otherwise still required; provided further that, would be reasonably expected to be inconsistent with its fiduciary duties under applicable Legal Requirements.
(1iv) if during the Notice Period described During any five (5) Business Day period specified in clause (BA) of this paragraph any revisions are made Section 5.4(d)(ii)(2) or clause (A) of Section 5.4(d)(iii), Globe shall be entitled to deliver to the Superior ProposalCompany one or more written proposals for amendments to this Agreement and, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision)requested by Globe, the Company shall deliver a new written notice negotiate with Globe and its Representatives in good faith (including by making the Company’s officers and other Representatives reasonably available to Parent and shall comply with the requirements of this Section 5.4(dnegotiate) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to thereto as provided in clause (C) of this paragraph but thereafter determines Section 5.4(d)(ii)(2) and clause (B) of Section 5.4(d)(iii). Any material change to the facts and circumstances relating to an Intervening Event shall require the Company to deliver to Globe a new written notice and again comply with the provisions of Section 5.4(d)(iii).
(v) The Board shall not make an Adverse any Change of Recommendation Change pursuant to other than in compliance with and as permitted by this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Implementation Agreement (SunEdison Semiconductor LTD)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time the Company Stockholder ApprovalApproval is obtained, the Company’s Company Board may make a Change of Directors mayRecommendation (i) in response to a Superior Proposal actually received by the Company or (ii) other than in connection with a Superior Proposal, in response to an event, occurrence, development or state of facts or circumstances occurring after the Agreement Date that affects the business, assets or operations of the Company that was neither known to, nor reasonably foreseeable by, the Company Board prior to the Agreement Date, in either case of (i) or (ii), if it concludes the Company Board determines in good faith (after consultation with outside legal counsel and its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make and may also terminate this Agreement pursuant to Section 7.1 to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to a Superior Proposal; provided provided, however, that prior to the Company Board shall not take any such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent complied with its obligations under Section 5.3(a) and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.45.3(e) (other than, including the information required to be provided pursuant to Section 5.4(b) and in each case, de minimis non-compliance);
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three at least four (34) Business Days in advance (the “Notice Period”) after to the effect that the Company Board intends to take such action to effect a Change of Recommendation and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 5.3(c) with respect to such Superior Proposal (it being understood and agreed that the determination by the Company Board that an Acquisition Proposal is, or would be reasonably likely lead to, a Superior Proposal (provided that, for the avoidance of doubt, such determination has not been disclosed to any third party that is not a Representative of the Company) and the delivery of each such notice a Determination Notice shall not, in and of themselves, be deemed a Change of Recommendation);
(iii) the Company shall have, and shall cause its Representatives to propose revisions to the terms of this Agreement (or make another proposal) andhave, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases that following every subsequent revision to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall be required to deliver a new written notice Determination Notice to Parent and shall to comply with the requirements of Section 5.3(e)(ii) and this Section 5.4(d5.3(e)(iii) with a new Notice Period with respect to such new written notice except Determination Notice and the revised Superior Proposal contemplated thereby; provided, further, however, that for purposes of any new Determination Notice delivered pursuant to and in accordance with the new immediately preceding proviso, the Notice Period with respect thereto shall be the greater of (x) the remaining portion of the Notice Period with respect to the Determination Notice provided with respect to the original Superior Proposal, and (y) at least two (2) Business Days instead in advance;
(iv) at or following the end of three such Notice Period, the Company Board shall have determined in good faith (3after consultation with outside legal counsel and its financial advisors) Business Days and that failure to take such action to effect a Change of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (2taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to Section 5.3(e)(iii)); and
(v) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) a termination of this paragraph but thereafter determines Agreement to make enter into an Adverse Recommendation Change pursuant Alternative Acquisition Agreement with respect to this Section 5.4(d)a Superior Proposal, the procedures referred to Company shall have validly terminated this Agreement in clauses (A), (B) accordance with Section 7.1 and (C) above shall apply anew and shall also apply to paid any subsequent withdrawal, amendment or changeCompany Termination Fee in accordance with Section 7.4.
Appears in 1 contract
Sources: Merger Agreement (Bazaarvoice Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to Following the contrary, at any time prior to obtaining receipt of an unsolicited Takeover Proposal received by the Company Stockholder Approvalbefore the Closing that is a Superior Proposal, the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorsor a committee thereof) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) may cause the Company shall have given Parent to terminate this Agreement pursuant to Section 8.01(d)(i) and Merger Sub prompt written notice advising them of either (x) the decision of the Company’s Board of Directors enter into or seek to take such action and the reasons therefor and enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (y) in the event case of a Superior Proposal that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the decision relates tender or exchange offer (any such termination, whether caused by the Board of Directors or a committee thereof, and actions described under clause (x) or (y) above, a "Change of Recommendation"); provided, however, that the Company shall not terminate this Agreement pursuant to an Alternative Transaction this Section 5.02(d) or Section 8.01(d)(i), and any purported termination pursuant to such sections shall be void and of no force and effect, unless concurrently with such termination pursuant to this Section 5.02(d) or Section 8.01(d)(i), the Company satisfies all of the following conditions:
(i) the Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company has (A) provided to Parent five (5) Business Days' prior written notice (a "Change of Recommendation Notice") which shall state expressly (x) that it has received a Superior Proposal, a summary of (y) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the person making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c)z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have "matched" such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel);
(iii) the Company shall have given paid to Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, Termination Fee and the Company’s Board of Directors Expense Reimbursement referred to in its good faith judgment determines Section 6.05(b); and
(after consultation with its financial advisors and outside legal advisorsiv) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent have complied with this Section 5.02(d) and shall comply with not have breached in any material respect any of the requirements of other provisions set forth in this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.02.
Appears in 1 contract
Sources: Merger Agreement (Cimnet Inc/Pa)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five- (5) Business Day period, if applicableand negotiate in good faith with respect thereto during such five- (5) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) stockholders of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with than the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall Merger (taking into account as it may be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change adjusted pursuant to this Section 5.4(d), the procedures referred to in clauses paragraph (A), (Biv) above) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.Table of Contents
Appears in 1 contract
Sources: Merger Agreement (Cybersource Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 5.6(b), at any time prior to obtaining the Company Seller Stockholder Approval, the Company’s Board of Directors of Seller may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make an Adverse a Change of Recommendation Change; provided that prior or terminate this Agreement in accordance with Section 7.1, if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(ii) Seller shall have (A) the Company shall have given Parent and Merger Sub prompt delivered to Buyer written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that Seller has received a Superior Proposal or determined the decision existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that Seller intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given Parent provide to Buyer a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith Superior Proposal (to the extent Parent desires not previously delivered or made available to negotiateBuyer) in accordance with Section 5.7(c)(i); and (C) during the aforementioned five (5) Business Day period, if requested by Buyer, engaged in good faith negotiations to make such adjustments in the terms and conditions of amend this Agreement so that, if applicable, in such Alternative Transaction a manner that the Superior Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), would no longer be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions case of this Agreement so an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Buyer shall not have, within the aforementioned five (5) Business Day period, made an offer that such Adverse Recommendation Change is otherwise not necessary, and (C) the CompanySeller’s Board of Directors shall have has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and the Seller Financial Advisor) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal or, in the case of an Intervening Event, addresses the basis for a Change of Recommendation;
(iv) the Board of Directors of Seller has concluded in good faith, after considering the results receipt of advice from and consultation with its outside legal counsel, that, in light of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during Intervening Event and after considering any adjustments or negotiations pursuant to the Notice Period described in preceding clause (B) of this paragraph any revisions are made to the Superior Proposalii), if applicable, and the Companythat Seller’s Board of Directors in its good faith judgment determines (after consultation Directors’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisorsfiduciary obligations to the stockholders of Seller under Delaware Law; and
(v) that such revisions are Seller shall have previously complied in all material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply respects with the requirements of provisions set forth in this Section 5.4(d5.7(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeAlternative Transaction Proposal.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iii) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement pursuant to clause (ii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be inconsistent with expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Section 7.1(i), enter into a binding written agreement concerning an Acquisition Proposal, and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement pursuant to clause (ii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent has concluded in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 1 contract
Sources: Merger Agreement (Pharmacopeia Inc)
Change of Recommendation. (i) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the time, but not after, the Company Stockholder ApprovalRequisite Vote is obtained, if a written Acquisition Proposal that did not otherwise result from a breach (other than an unintentional or de minimis breach) of Section 6.1 is received by the Company’s , and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may, if it concludes the Board of Directors of the Company has determined in good faith (after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary -40- duties under applicable Law, make an Adverse (x) effect a Change of Recommendation Changeand/or (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i); provided that further, that, prior to any taking such Adverse Recommendation Changeaction described in clauses (x) and/or (y) above, (A) the Company shall have given give Parent and Merger Sub prompt written notice advising them of four (x4) Business Days in advance (such period from the decision of time the Company’s Company Notice is provided until 5:00 p.m. New York City time on the fourth (4th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), which notice shall set forth in writing (I) that the Board of Directors to take such action and of the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Company has received a written Acquisition Proposal that would, if consummated, constitute a Superior Proposal, a summary of (II) the material terms and conditions of the Alternative Transaction Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Acquisition Proposal and all other information requested documents (other than immaterial documents) related to be provided with respect thereto pursuant the Superior Proposal and (III) advise Parent that the Board of Directors of the Company intends to effect a Change of Recommendation and/or terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b8.1(d)(ii) and in order to enter into a definitive written agreement providing for such Superior Proposal (csuch notice, the “Company Notice”), (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall have given negotiate in good faith with Parent and Merger Sub three (3) Business Days (to the “Notice Period”) after delivery of each extent requested by Parent), to make such notice to propose revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (or make another proposalC) and, during at the end of the Notice Period, prior to and as a condition precedent to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shallshall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent have determined in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal orProposal, if such changes offered in writing by Parent (if any) were to be given effect. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” and such three 31) Business Day period shall expire at 5:00 p.m. on the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional three (3) Business Day notice period be deemed to make such adjustments shorten the initial four (4) Business Day notice period).
(ii) Notwithstanding anything in the terms and conditions of this Agreement so that such Adverse to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, the Board of Directors of the Company may effect a Change of Recommendation Change is otherwise not necessaryif (x) an Intervening Event has occurred, and (Cy) prior to taking such action, the Company’s Board of Directors shall have of the Company has determined in good faith, after considering consultation with its outside legal counsel and its financial advisor(s), that failure to take such action in response to such Intervening Event would -41- reasonably be expected to be inconsistent with the results directors’ fiduciary duties under applicable Law; provided, however, that prior to effecting such Change of Recommendation, (A) the Company shall give Parent a Company Notice five (5) Business Days in advance, which notice shall include a reasonably detailed description of such negotiations Intervening Event and giving effect to the proposals made by Parent and Merger Subrationale for the Change of Recommendation, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) after giving such Company Notice and prior to effecting a Change of Recommendation, the Company shall negotiate in good faith with Parent (to the extent requested by Parent), to make revisions to the terms of this paragraph any revisions are made Agreement and (C) at the end of the Notice Period, prior to and as a condition precedent to effecting a Change of Recommendation, the Superior Proposal, if applicable, and the Company’s Board of Directors of the Company shall take into account in its good faith judgment determines (any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its financial advisors and outside legal advisorscounsel and its financial advisor(s) that (I) such revisions are material Intervening Event remains in effect and (it being understood that any change II) the failure to effect a Change of Recommendation in the purchase price or form of consideration in response to such Superior Proposal shall Intervening Event would reasonably be deemed a material revision), the Company shall deliver a new written notice expected to Parent and shall comply be inconsistent with the requirements of this Section 5.4(ddirectors’ fiduciary duties under applicable Law if such changes proposed in writing by Parent (if any) with respect were to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changegiven effect.
Appears in 1 contract
Sources: Merger Agreement (Ferro Corp)
Change of Recommendation. Notwithstanding anything Solely in response to the receipt of a Superior Proposal or an Intervening Event, the Board of Directors of the Company may make a Change of Recommendation (and the Company may terminate this Agreement to the contraryextent permitted by, at any time prior and in accordance with, Section 8.1(j)), if all of the following conditions in clauses (i) through (vi) are met:
(i) in the case of a Superior Proposal, the Superior Proposal shall have been made and not withdrawn and shall continue to obtaining be a Superior Proposal;
(ii) the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes in good faith Approval shall not yet have been obtained;
(after consultation with its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (Aiii) the Company shall have given have: (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least three (x3) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the decision of the Company’s Board of Directors to take such action and the reasons therefor and Company has received a Superior Proposal or an Intervening Event has occurred, as applicable, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Third Party making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, a description in reasonable detail of the cause and factors constituting such Intervening Event, and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provided to Parent a copy of all materials and information delivered or made available by or on behalf of the Company shall have given Parent to the Third Party making the Superior Proposal in connection with such Superior Proposal; and Merger Sub (C) during the aforementioned three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) andDay period, during the Notice Periodif requested by Parent, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent engaged in good faith (negotiations to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of amend this Agreement so that, if applicable, in such Alternative Transaction a manner that the Superior Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), would no longer be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions case of this Agreement so an Intervening Event, obviates the need for a Change of Recommendation to comply with its fiduciary obligations to the stockholders of the Company under Delaware Law;
(iv) Parent shall not have, within the aforementioned three (3) Business Day period, made an offer in writing that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors has in good faith determined (after consultation with its outside financial advisor and outside legal counsel) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal or, in the case of an Intervening Event, obviates the need for a Change of Recommendation to comply with its fiduciary obligations to the stockholders of the Company under Delaware Law;
(v) the Board of Directors of the Company shall have determined concluded in good faith, after considering the results consultation with its outside legal counsel, that, in light of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during Intervening Event and after considering any adjustments proposed by Parent in writing pursuant to the Notice Period described in preceding clause (B) of this paragraph any revisions are made to the Superior Proposaliv), if applicable, and that the Company’s Board of Directors in its good faith judgment determines (after consultation is required to effect a Change of Recommendation to comply with its financial advisors and outside legal advisorsfiduciary obligations to the stockholders of the Company under Delaware Law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver have previously complied with the provisions set forth in Section 6.2 and this Section 6.3. Notwithstanding anything to the contrary contained herein, in the event of a Superior Proposal, any material amendment or modification to an existing Superior Proposal will be deemed to be a new written notice to Parent and shall comply with the requirements Superior Proposal for purposes of this Section 5.4(d6.3(d), and in the event of an Intervening Event, any material change to the Intervening Event will be deemed to be a new Intervening Event for purposes of this Section 6.3(d) with respect to such (and each will require a new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Day period, measured as set forth above, and (2) in compliance with the event terms of this Section 6.3(d), before the Company’s Board of Directors does not make of the determination referred to in clause (C) of this paragraph but thereafter determines Company is permitted hereunder to make an Adverse Recommendation a Change pursuant to this Section 5.4(dof Recommendation), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Merger Agreement (Answers CORP)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the Requisite Company Vote is obtained, the Company Stockholder Approval, Board may make a Change of Recommendation (x) following receipt of an Acquisition Proposal after the Company’s execution of this Agreement that did not result from a material breach of this Section 6.2 and that the Company Board of Directors may, if it concludes determines in good faith (after consultation with its financial advisors advisor and outside legal advisorscounsel) constitutes a Superior Proposal or (y) solely in response to a material event, occurrence, development or state of facts or circumstances, not related to an Acquisition Proposal, and that first occurred following the execution of this Agreement and was neither known to, nor reasonably foreseeable by, the Company Board prior to the date of this Agreement (an “Intervening Event”), in each case referred to in clauses (x) and (y) above, only if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take such action would reasonably expected to be inconsistent with its fiduciary the directors’ duties under applicable Law, make and may also terminate this Agreement pursuant to Section 8.3(a) to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to a Superior Proposal; provided provided, however, that prior to any the Company Board shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided complied with respect thereto pursuant to its obligations under this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and 6.2 in all material respects;
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three (3) Business Days at least 72 hours in advance of taking such actions (the “Notice Period”) after delivery of each such notice to propose revisions to the terms effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(c) with respect to such Superior Proposal, including a copy of this Agreement the relevant proposed transaction agreements with, and the identity of, the party making the Acquisition Proposal;
(or make another proposaliii) andthe Company shall have, and shall have caused its financial and legal advisors to have, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in to the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any amendment to the Company’s Board financial terms or any other material terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of this Section 6.2(f)(iii) with respect to such new Determination Notice and outside legal advisors), a the revised Superior Proposal orcontemplated thereby, if except that the Adverse Recommendation Change does not involve an Alternative Transaction ProposalNotice Period commencing upon the delivery of such new Determination Notice shall be reduced to 48 hours;
(iv) at or following the end of such Notice Period, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors advisor and outside legal advisorscounsel, that failure to take such action would continue to be inconsistent with the directors’ duties under applicable Law (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (iii) that such revisions are material above); and
(it being understood that any change v) in the purchase price or form event of consideration in such a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal shall be deemed a material revision)Proposal, the Company shall deliver a new written notice have validly terminated this Agreement in accordance with Section 8.3 and paid the Company Termination Fee in accordance with Section 8.5. After twice complying with clause (iii) above with respect to Parent any such Superior Proposal, the Company and the Company Board shall comply with the requirements of this Section 5.4(dhave no further obligations under clause (iii) with respect to any such new written notice except that Superior Proposal and the new Notice Period Company Board shall not be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred required to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply comply with such obligations with respect to any subsequent withdrawal, amendment or changesuch Superior Proposal.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this The Merger Agreement to the contraryprovides that, at any time prior to obtaining the Company Stockholder Approvalexcept as provided below, the Company’s PHX Board shall not effect a Company Change of Directors mayBoard Recommendation except as provided below. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in the subsection entitled “No Solicitation and Superior Proposal Provisions,” if it concludes (i) PHX has received a bona fide written Company Acquisition Proposal that has not been withdrawn and did not result from a breach (other than a de minimis breach) of the obligations set forth in the applicable non-solicitation provisions of the Merger Agreement, (ii) the PHX Board determines in good faith (faith, after consultation with outside counsel and its financial advisors advisors, (A) that such Company Acquisition Proposal constitutes a Superior Company Proposal and outside legal advisors(B) in light of such Superior Company Proposal, and absent any further revisions to the terms and conditions of the Merger Agreement, that the failure to take such action the actions summarized in bullet points below would be inconsistent with its the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Changeapplicable, (Aiii) the Company PHX shall have given provided (the “Company Notice”) to Parent and Merger Sub prompt at least five Business Days’ prior written notice advising them (such period, the “Company Notice Period”) of (x) the decision of the CompanyPHX’s Board of Directors intention to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposalaction, a summary of which Company Notice shall specify the material terms and conditions of such Company Acquisition Proposal (and include a copy of the Alternative Transaction Proposal and other information requested most current proposed transaction agreement to be provided with entered into in respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(bof such Company Acquisition Proposal) and (c), (B) state that the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent PHX Board has determined in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, that failure to take the actions summarized in bullet points below would be inconsistent with the directors’ fiduciary duties under applicable law, and that the PHX Board intends to effect a Superior Proposal Company Change of Board Recommendation or, if applicable, terminate the Adverse Recommendation Change does not involve an Alternative Transaction ProposalMerger Agreement in order to enter into a definitive agreement with respect to a Superior Company Proposal in accordance with the Merger Agreement, absent revisions to make such adjustments in the terms and conditions of this the Merger Agreement so that would cause such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Company Acquisition Proposal to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues cease to constitute a Superior Proposal Company Proposal; (iv) during the Company Notice Period, if requested by Parent, PHX shall have, and shall have caused its legal and financial advisors to, engaged or engage, as applicable, in good faith negotiations with Parent regarding any adjustment or amendment to the Merger Agreement or any other agreement proposed in writing by Parent, so that such Adverse Recommendation Change Company Acquisition Proposal ceases to constitute a Superior Company Proposal (any material revision to the terms of a Superior Company Proposal, including any revision in price, will cause the Company Notice Period to be extended to ensure that at least three Business Days TABLE OF CONTENTS remain in the Company Notice Period subsequent to the time PHX notifies Parent of any such material revision, and that the Company Notice Period may be extended multiple times), the intent and purpose of which is otherwise still required; provided further thatto amend the Merger Agreement in such a manner that obviates the need for the actions summarized in bullet points below, (1v) if during the Notice Period described PHX Board has considered in good faith any revisions to the terms of the Merger Agreement proposed by Parent as a result of the negotiations required by the preceding clause (Biv) or otherwise; and (vi) at the end of this paragraph any revisions are made to the Superior ProposalCompany Notice Period, if applicablesuch Company Acquisition Proposal has not been withdrawn, and the Company’s PHX Board of Directors reaffirms in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) counsel that such revisions are material Company Acquisition Proposal continues to constitute a Superior Company Proposal (it being understood taking into account any changes to the Merger Agreement proposed by Parent as a result of the negotiations required by the preceding clause (iv) or otherwise) such that any change the PHX Board’s failure to take the actions summarized in bullet points below would be inconsistent with the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision)directors’ fiduciary duties under applicable law, the PHX Board may at any time prior to the Acceptance Time: • effect a Company shall deliver a new written notice to Parent and shall comply with the requirements Change of this Section 5.4(d) Board Recommendation with respect to such new Superior Company Proposal or • terminate the Merger Agreement to concurrently enter into a definitive agreement with respect to such Superior Company Proposal in accordance with the Merger Agreement and, in such case, provided, that PHX pays, or cases to be paid, to Parent the Company Termination Fee (as defined below) prior to or concurrently with such termination. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in the subsection entitled “No Solicitation and Superior Proposal Provisions,” the PHX Board may, at any time prior to the Acceptance Time, effect a Company Change of Board Recommendation in response to a Company Intervening Event if (i) PHX has provided to Parent written notice, at least five Business Days prior to any meeting of the PHX Board at which the PHX Board will consider whether such Company Intervening Event requires the PHX Board to take such action, specifying the date and time of such meeting and the reasons for holding such meeting, including a reasonably detailed description of facts relating to the underlying Company Intervening Event; (ii) the PHX Board has determined in good faith, after consultation with its financial advisors and outside counsel, that the failure to effect a Company Change of Board Recommendation absent any revision to the terms and conditions of the Merger Agreement would be inconsistent with the directors’ fiduciary duties under applicable law; (iii) following such meeting, PHX provides to Parent a written notice except (a “Notice of Intervening Event”) to the effect that the new PHX Board has determined in good faith, after consultation with its financial advisors and outside counsel, that the PHX Boad proposes to effect a Company Change of Board Recommendation absent any revision to the terms and conditions of the Merger Agreement; (iv) during the period from the time the Notice Period shall of Intervening Event is provided until the end of the fifth Business Day thereafter (such period, the “Notice of Intervening Event Period”) (each material development with respect to a Company Intervening Event will cause the Notice of Intervening Event period to be two (2) extended to ensure that at least three Business Days instead remain in the Notice of three Intervening Event Period subsequent to the time PHX notifies Parent of any such material development, and that the Notice of Intervening Event Period may be extended multiple times), if requested by Parent, PHX shall have, and shall have caused its legal and financial advisors to, engaged or engage, as applicable, in good faith negotiations with Parent regarding any amendments to the Merger Agreement proposed by Parent, the intent and purpose of which is to amend the Merger Agreement in such manner that obviates the need for such Company Change of Board Recommendation; (3v) Business Days the PHX Board has considered in good faith any revisions to the terms of the Merger Agreement proposed by Parent as a result of the negotiations required by the preceding clause (iv) or otherwise and (2vi) the PHX Board has determined in good faith (taking into account any changes to the terms of the Merger Agreement proposed by Parent as a result of the negotiations required by the preceding clause (iv) or otherwise), after consultation with its financial advisors and outside counsel, that the failure to make a Company Change of Board Recommendation in response to such Company Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable law. The Merger Agreement provides that nothing contained in the event Merger Agreement shall prohibit PHX or the Company’s PHX Board from (i) taking and disclosing to the stockholders of Directors does not make PHX a position contemplated by Rule 14e-2(a) promulgated under the determination referred to in clause (CExchange Act, and complying with Rule 14d-9 promulgated under the Exchange Act and Item 1012(a) of this paragraph but thereafter determines Regulation M-A promulgated under the Exchange Act; (ii) making any legally required disclosure to make an Adverse Recommendation Change pursuant to this Section 5.4(d)the PHX stockholders or (iii) making a “stop, the procedures referred to in clauses look and listen” statement (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.or
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iii) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement pursuant to clause (ii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be inconsistent with Table of Contents expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Section 7.1(i), enter into a binding written agreement concerning an Acquisition Proposal, and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement pursuant to clause (ii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent has concluded in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc)
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that, except as provided below, neither the Company Board nor any committee thereof will (i) (A) fail to make, (B) withdraw, amend or modify, or (C) publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any other tender offer or exchange offer for the Shares within ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation or (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”). The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this Agreement to subsection entitled “Change of Recommendation” or any other provisions of the contraryMerger Agreement, the Company Board, following receipt of and on account of a Superior Proposal, at any time prior to obtaining the Acceptance Time, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel to the Company Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable Law, law. The Merger Agreement provides that the Company Board will not be permitted to make an Adverse Recommendation Change; provided that prior to any such Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • the Company promptly notifies Parent in writing at least four (4) business days before making an Adverse Recommendation Change, (A) Change or terminating the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days Agreement (the “Notice Period”) after delivery ), of each its intention to do so; • the Company attaches to such notice to propose revisions to the most current version of the proposed agreement or a reasonably detailed summary of all material terms of this Agreement any such Superior Proposal (which version or make another proposalsummary will be updated on a prompt basis) and, and the identity of the third party making the Superior Proposal; • during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this the Merger Agreement so that, if applicable, that such Alternative Transaction Acquisition Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal orProposal, if the Adverse Recommendation Change does not involve an Alternative Transaction ProposalParent, in its discretion, proposes to make such adjustments adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three business days remain in the terms Notice Period subsequent to the time the Company notifies Parent of any such material revision; and conditions Table of this Agreement so Contents • Parent does not make, within the Notice Period, an offer that such Adverse Recommendation Change is otherwise not necessary, and (C) determined by the Company’s Company Board of Directors shall have determined in good faith, after considering consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the results stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such negotiations and giving Intervening Event, the failure of the Company Board to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such an Adverse Recommendation Change is otherwise still requiredwould be a breach of its duties under applicable law or regulation; provided further thatthat no fact, (1) event, change, development or set of circumstances will constitute an Intervening Event if during such fact, event, change, development or set of circumstances resulted from or arose out of the Notice Period described in clause (B) announcement, pendency or consummation of this paragraph any revisions are made to the Superior ProposalOffer or the Merger; and provided, if applicablefurther, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice Board will not be entitled to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines exercise its right to make an Adverse Recommendation Change pursuant to the provisions of the Merger Agreement which are summarized in this paragraph unless the Company Board has (i) provided to Parent at least four business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (ii) during such four business day period, if requested by ▇▇▇▇▇▇, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 5.4(d)7.03 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two business days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the procedures referred Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data as reasonably requested subject in clauses (A)each case to certain limitations relating to confidentiality, (B) attorney-client privilege, and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment limitations under applicable law or changeregulations.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the condition in Section 7.1(a) has been satisfied, the Company Stockholder ApprovalBoard may make a Change of Recommendation in connection with a Superior Proposal or in response to an Intervening Event, the Company’s Board of Directors mayin either case, if it concludes the Company Board determines in good faith (faith, after consultation with its financial advisors advisor and outside legal advisors) counsel, that the failure to take such action would be inconsistent with its the directors' fiduciary duties under applicable Law, make or may terminate this Agreement pursuant to Section 8.3(a) to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to such a Superior Proposal; provided provided, however, that prior to any the Company Board shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt complied in all material respects with this Section 6.2(g);
(ii) the Company shall have provided prior written notice advising them of (xa "Determination Notice") to Parent at least five (5) business days in advance (the decision of "Notice Period") to the Company’s effect that the Company Board of Directors intends to take such action and specifying in reasonable detail the reasons therefor and (y) circumstances giving rise to such proposed action, including, in the event the decision relates case such action is proposed to an Alternative Transaction be taken in connection with a Superior Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided specified by Section 6.2(d) with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and such Superior Proposal;
(c), (Biii) the Company shall have, and shall have given Parent caused its financial and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice legal advisors to propose revisions to the terms of this Agreement (or make another proposal) andbe available, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate for negotiations with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors' fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any material revisions to the Company’s Board terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and outside legal advisorsthe revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to three (3) business days (it being understood that the delivery of any such new Determination Notice shall not shorten the original five (5) business day Notice Period);
(iv) at or following the end of such Notice Period (inclusive of any Notice Period following the delivery of any new Determination Notice(s) in accordance with Section 6.2(g)(iii)), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors advisor and outside legal advisors) that such revisions are material (it being understood that any change counsel, that, in the purchase price or form case of consideration a Change of Recommendation in connection with a Superior Proposal, such Acquisition Proposal remains a Superior Proposal shall (including taking into account any adjustments in the terms of this Agreement proposed by Parent in connection with Section 6.2(g)(iii) above) and that failure to take such action would continue to be deemed inconsistent with the directors' fiduciary duties under applicable Law (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the end of the latest Notice Period pursuant to clause (iii) above); and
(v) in the event of a material revision)termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, the Company shall deliver a new written notice to Parent and shall comply have validly terminated this Agreement in accordance with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B8.3(a) and (C) above shall apply anew and shall also apply prior to any subsequent withdrawal, amendment or changeconcurrently with such termination paid the Company Termination Fee in accordance with Section 8.5(b)(iii).
Appears in 1 contract
Change of Recommendation. Notwithstanding anything to the contrary contained in Section 6.3(a), (x) the board of directors of the Company may withhold, withdraw, amend or modify its Recommendation, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the board of directors of the Company or a committee thereof, a "Change of Recommendation"), (y) the board of directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, and (z) the Company may, after payment of the Termination Fee pursuant to Section 8.3(b), terminate this Agreement pursuant to Section 8.1(h) and the contraryCompany or any of its Subsidiaries may concurrently with such termination execute or enter into a binding definitive agreement with respect to a Superior Offer, at any time if and only if, prior to obtaining any such action described in clauses (x), (y) and (z) hereof, all of the following conditions in clauses (i) through (vi) are met:
(i) the board of directors of the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes determines in good faith (faith, after consultation with its the Company's financial advisors and outside legal advisors) counsel, that the failure to take such action would it may be inconsistent with required by its fiduciary duties under to do so;
(ii) the shareholders of the Company have not approved this Agreement in accordance with applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a "Change of Recommendation Notice") at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A), if applicable, that the decision of Company has received a Superior Offer, the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)identity of the Person or group making the Superior Offer, (B) that the Company intends to effect a Change of Recommendation and (C) if applicable, that the Company intends to terminate this Agreement pursuant to Section 8.1(h);
(iv) after delivering the Change of Recommendation Notice, the Company shall have given (A) provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five (5) Business Day period and (B) negotiate in good faith with respect thereto during such five (5) Business Day period, if applicable, such Alternative Transaction Proposal ceases in each case as would enable the Company to constitute proceed with the Recommendation without making a Change of Recommendation;
(in v) the judgment board of directors of the Company’s Board Company shall have determined after considering the terms of Directorsthe Merger (as they may be adjusted pursuant to paragraph (iv) above), after consultation with its the Company's financial advisors advisor and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anycounsel, that such Alternative Transaction Proposal, if applicable, continues it is required by its fiduciary duties to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requireddo so; provided further that, and
(1vi) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that, except as provided below, neither the Company Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Company Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this Agreement to subsection entitled “Change of Recommendation” or any other provisions of the contraryMerger Agreement, at any time prior to obtaining the Acceptance Time, the Company Stockholder ApprovalBoard, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Company’s Company Board of Directors may, if it concludes determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel to the Company Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable Law, law. The Merger Agreement provides that the Company Board will not be permitted to make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Change or terminate the Merger Agreement under the Fiduciary Termination Provision (Aas defined below) unless: • the Company shall have given promptly notifies Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub writing at least three (3) Business Days business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”) after delivery ), of each its intention to do so; Table of Contents • the Company attaches to such notice to propose revisions to the most current version of the proposed agreement or a reasonably detailed summary of all material terms of this Agreement any such Superior Proposal (which version or make another proposalsummary will be updated on a prompt basis) and, and the identity of the third party making the Superior Proposal; • during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this the Merger Agreement so that, if applicable, that such Alternative Transaction Acquisition Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal orProposal, if the Adverse Recommendation Change does not involve an Alternative Transaction ProposalParent, in its discretion, proposes to make such adjustments adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three (3) business days remain in the terms Notice Period subsequent to the time the Company notifies Parent of any such material revision; and conditions of this Agreement so • Parent does not make, within the Notice Period, an offer that such Adverse Recommendation Change is otherwise not necessary, and (C) determined by the Company’s Company Board of Directors shall have determined in good faith, after considering consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the results stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such negotiations and giving Intervening Event, the failure of the Company Board to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such an Adverse Recommendation Change is otherwise still requiredwould be in breach of its fiduciary duties under applicable law; provided further thatthat no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (1A) if during provided to Parent at least four (4) business days’ prior written notice advising Parent that the Notice Period described Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in clause reasonable detail, and (B) of this paragraph any revisions are made to the Superior Proposalduring such four (4) business day period, if applicablerequested by ▇▇▇▇▇▇, and the Company’s Board of Directors engaged in its good faith judgment determines negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (after consultation the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with its financial advisors Rule 14d-9 and outside legal advisorsRule 14e-2(a) that such revisions are material (it being understood under the Exchange Act with regard to an Acquisition Proposal; provided that any change in such disclosure (other than a “stop, look and listen” communication or similar communication of the purchase price or form of consideration type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(dcommunication or (ii) with respect to such new written notice except that the new Notice Period shall be within two (2) Business Days instead after requested to do so by Parent. The Merger Agreement provides that from the date of three (3) Business Days and (2) in the event Merger Agreement until the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d)Effective Time, the procedures referred Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in clauses (A)each case to certain limitations relating to confidentiality, (B) attorney-client privilege, and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment limitations under applicable law or changeregulations.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to Following the contrary, at any time prior to obtaining receipt of an unsolicited Takeover Proposal received by the Company Stockholder Approvalon or before the Initial Proposal Deadline that as of the Final Change Deadline is a Superior Proposal, the Company’s Board of Directors (or a committee thereof) may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that on or before the failure to take such action would be inconsistent with its fiduciary duties under applicable LawFinal Change Deadline, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) cause the Company shall have given Parent to terminate this Agreement pursuant to Section 8.01(d)(i) and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors enter into or seek to take such action and the reasons therefor and enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (y) in the event case of a Superior Proposal that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the decision relates tender or exchange offer (any such termination, whether caused by the Board of Directors or a committee thereof, and actions described under clause (x) or (y) above, a "Change of Recommendation"), if all of the following conditions in clauses (i) through (iv) are met:
(i) the Superior Proposal has been made and has not been withdrawn and continues to an Alternative Transaction be a Superior Proposal;
(ii) the Company has (A) provided to Parent five (5) Business Days' prior written notice (a "Change of Recommendation Notice") which shall state expressly (x) that it has received a Superior Proposal, a summary of (y) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c)z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have "matched" such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel and financial advisor);
(iii) the Company shall have given paid to Parent the Termination Fee and Merger Sub three Expenses referred to in Section 6.05 if required by this Agreement; and
(3iv) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent have complied with this paragraph (d) and shall comply with not have breached in any material respect any of the requirements of other provisions set forth in this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.02.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the Requisite Company Vote is obtained, the Company Stockholder ApprovalBoard or the Special Committee may make a Change of Recommendation in connection with a Superior Proposal or in response to an event, occurrence, development or state of facts or circumstances occurring after the date hereof that was neither known to, nor reasonably foreseeable by, the Company’s Company Board of Directors mayor the Special Committee prior to the date hereof, in either case, if it concludes the Company Board or the Special Committee determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make and may also terminate this Agreement pursuant to Section 8.3(a) to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to a Superior Proposal; provided provided, however, that prior to any the Company Board or the Special Committee shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) complied in the event the decision relates to an Alternative Transaction Proposal, a summary of the all material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided respects with respect thereto pursuant to its obligations under this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and 6.2(g);
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three (3) Business Days at least 72 hours in advance (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement effect that the Company Board or the Special Committee intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(d) with respect to such Superior Proposal;
(or make another proposaliii) andthe Company shall have, and shall have caused its financial and legal advisors to have, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any material revisions to the Company’s Board terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and outside legal advisors), a the revised Superior Proposal orcontemplated thereby, if except that the Adverse Recommendation Change does not involve an Alternative Transaction ProposalNotice Period commencing upon the delivery of such new Determination Notice shall be reduced to 48 hours;
(iv) at or following the end of such Notice Period, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) Company Board or the Company’s Board of Directors Special Committee shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors advisor and outside legal advisorscounsel, that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (iii) that such revisions are material above); and
(it being understood that any change v) in the purchase price or form event of consideration in such a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal shall be deemed a material revision)Proposal, the Company shall deliver a new written notice to Parent and shall comply have validly terminated this Agreement in accordance with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B8.3(a) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changepaid the Company Termination Fee in accordance with Section 8.5(b)(iii).
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contraryany provision of Section 5.2(e), at any time prior to the earlier to occur of the Offer Closing and obtaining the Company Stockholder Approval, (i) if the Company’s Company has received a bona fide written Takeover Proposal that the Company Board of Directors may, if it concludes determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) constitutes a Superior Proposal, or (ii) if an Intervening Event has occurred, the Company Board may effect an Adverse Recommendation Change in connection with such Superior Proposal or in response to such Intervening Event if and only if:
(A) it determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), ;
(B) the Company shall have given provided prior written notice to Parent and Merger Sub Sub, at least three (3) Business Days in advance, that it will effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(f) and specifying the reasons therefor (the a “Notice Period”) after delivery of each such notice to propose revisions Intended Recommendation Change”)(it being understood and agreed that any material amendment to the terms of any Superior Proposal (and in any event including any amendment to any price term thereof), or any material change to the facts and circumstances relating to an Intervening Event, in each case that was previously the subject of a Notice of Intended Recommendation Change, shall require a new Notice of Intended Recommendation Change (an “Amended Notice of Intended Recommendation Change”) and compliance with the requirements of this Agreement Section 5.2(f), except that the prior written notice period and corresponding references to a three Business Day period shall be reduced to a one Business Day period for any such Amended Notice of Intended Recommendation Change);
(C) to the extent such Adverse Recommendation Change or make another proposaltermination is being made as a result of a Superior Proposal:
(1) and, during the Notice Periodof Intended Recommendation Change shall specify the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents relating to such Superior Proposal;
(2) after providing any such Notice of Intended Recommendation Change, the Company shall, and shall direct cause its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent desires and Merger Sub desire to negotiate) during such three Business Day period (or one Business Day period in the event of an Amended Notice of Intended Recommendation Change) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute and the other agreements contemplated hereby; and
(3) the Company Board shall have considered in the judgment of the Company’s Board of Directors, good faith (after consultation with its financial advisors and outside legal advisors)counsel) any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third Business Day of such three Business Day period (or first Business Day of such one Business Day period in the event of an Amended Notice of Intended Recommendation Change) and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in were to be given effect; and
(D) to the terms and conditions of this Agreement so that extent such Adverse Recommendation Change is otherwise not necessarybeing made in response to an Intervening Event:
(1) the Notice of Intended Recommendation Change shall specify the Intervening Event in reasonable detail;
(2) after providing any such Notice of Intended Recommendation Change, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (Cto the extent Parent and Merger Sub desire to negotiate) during such three Business Day period (or one Business Day period in the event of an Amended Notice of Intended Recommendation Change) to amend this Agreement in such a manner that such Intervening Event no longer necessitates such Adverse Recommendation Change; and
(3) the Company’s Company Board shall have considered in good faith any adjustments to this Agreement and the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third Business Day of Directors such three Business Day period (or first Business Day of such one Business Day period in the event of an Amended Notice of Intended Recommendation Change and shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel) that such revisions are material Intervening Event continues to necessitate an Adverse Recommendation Change.
(it being understood E) In the event that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver has given a new Notice of Intended Recommendation Change, Parent may, upon written notice to the Company, extend the Effective Time and, if applicable, the expiration of the Offer (but in no event, in either such case, beyond the earlier of (i) the Outside Date, (ii) the end of the first Business Day following the period described in Section 5.2(f)(C)(3) or Section 5.2(f)(D)(3), as applicable, or (iii) any other date agreed upon by the Parties) to allow sufficient time for the negotiations between the Company and the Parent and shall comply with the requirements of Merger Sub regarding possible adjustments to this Section 5.4(d) with respect to such new written notice except that Agreement, consideration by the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Company Board of Directors does not make adjustments to this Agreement or the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change and/or the termination of this Agreement pursuant to this Section 5.4(d8.1(e) or Section 8.1(f), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer and release the Person making the Superior Offer from any “standstill” obligation pursuant to agreements between such Person and the Company (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Shareholders’ Meeting has not occurred;
(iii) The Company shall have (a) delivered to Parent written notice (a “Change of Recommendation Notice”) at least three Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so, (the “Notice Period”b) after delivery provided to Parent a copy of each such notice to propose revisions all written materials delivered to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Offer in connection with Parent in good faith such Superior Offer (to the extent not previously provided to Parent), and (c) made available to Parent desires all materials and information made available to negotiatethe Person or group making the Superior Offer in connection with such Superior Offer;
(iv) During the at least three Business Day period from delivery to Parent of the Change of Recommendation Notice until the effecting of any Change of Recommendation, the Company shall provide Parent with a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatAgreement, if applicableand negotiate in good faith with respect thereto, such Alternative Transaction Proposal ceases as would enable the Company to constitute (in the judgment of the Company’s Board of Directors, after consultation proceed with its financial advisors recommendation to shareholders in favor of approval and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and Approval of the Merger without making a Change is otherwise not necessary, and of Recommendation.
(Cv) the Company’s The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel (which may be O’Melveny & ▇▇▇▇▇ LLP), that, in light of such Superior Offer and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) failure of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in fiduciary obligations to the purchase price or form shareholders of consideration in such Superior Proposal shall be deemed a material revision), the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 1 contract
Sources: Merger Agreement (Tarantella Inc)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of adoption of this Agreement and approval of the Merger and the transactions contemplated hereby, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), only if all of the following conditions in clauses (1) through (6) are met:
(1) a Superior Offer with respect to it concludes in good faith has been made and has not been withdrawn;
(after consultation with its financial advisors 2) the Company stockholders have not adopted this Agreement and outside legal advisors) that approved the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Merger and the transactions contemplated hereby;
(A3) the Company shall have given provided Parent and Merger Sub prompt with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) at least two business days prior to effecting a Change of Recommendation, which shall state expressly (A) that the decision of the Company’s Board of Directors to take such action and the reasons therefor and Company has received a Superior Offer, (yB) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) after delivering the Change of Recommendation Notice, (B) the Company shall have given provided Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such two business day period, if applicableand shall have negotiated in good faith with respect thereto during such two business day period, such Alternative Transaction Proposal ceases to constitute (in regarding any changes proposed by Parent for the judgment purpose of enabling the Company’s Board of Directors, after consultation Directors to proceed with its financial advisors and outside legal advisors), a Superior Proposal or, if recommendation in favor of the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and approval of the Merger and the transactions contemplated hereby, without effecting a Change is otherwise not necessary, and of Recommendation;
(C5) the Company’s Board of Directors shall have determined has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior breach of its fiduciary obligations to its stockholders under applicable Legal Requirements in accordance with Section 5.3(c); and
(6) the Company shall not have breached in any material respect any of the provisions set forth in Section 5.2 or this Section 5.3.
(ii) Other than in connection with an Acquisition Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thata Superior Offer (which shall be subject to Section 5.3(d)(i) and not subject to this Section 5.3(d)(ii)), (1) if during nothing in this Agreement shall prohibit or restrict the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors of the Company from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its good faith judgment determines (after consultation with its financial advisors and reputable outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration counsel experienced in such Superior Proposal shall be deemed a material revisionmatters (including DLA Piper US LLP), that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that the Company shall deliver a new send to Parent written notice of its intention to Parent and shall comply with effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does of the Company shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Merger Agreement (Vantagemed Corp)
Change of Recommendation. Notwithstanding anything The Merger Agreement provides that, except as provided below, neither the Cerner Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this Agreement to subsection entitled “Change of Recommendation” or any other provisions of the contraryMerger Agreement, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time, the Company’s Cerner Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Board of Directors may, if it concludes determines in good faith (after consultation with its financial advisors and outside legal advisors) counsel to the Cerner Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable Law, law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change; provided that prior to any such Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (yChange Notice”) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) after the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice to propose revisions to the most current version of the proposed agreement or a reasonably detailed summary of all material terms of this Agreement any such Superior Proposal (which version or make another proposalsummary will be updated on a prompt basis) and, and the identity of the third party making the Superior Proposal; and • during the Notice Period, the Company shallif requested by ▇▇▇▇▇▇, Cerner and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this the Merger Agreement so that, if applicable, that such Alternative Transaction Acquisition Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicableParent, and the Company’s Board of Directors in its good faith judgment determines (after consultation discretion, proposes to make such adjustments, with its financial advisors and outside legal advisors) the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that such revisions are material (it being understood that any change at least two Business Days remain in the purchase price or form Notice Period subsequent to the time Cerner notifies Parent of consideration in any such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Change of Recommendation. Notwithstanding anything The Company Board or any committee thereof shall not withhold, withdraw, qualify, amend or modify in this Agreement a manner adverse to Parent the contrary, at Company Board Recommendation for any time prior to obtaining reason (a “Change of Recommendation”) unless:
(i) the Company Stockholder ApprovalApproval has not yet been obtained;
(ii) the Company shall have complied in all respects with the provisions and requirements set forth in Section 5.3(a) and complied in all material respects with the provisions and requirements set forth in Section 5.2, Section 5.3(b) and Section 5.3 (c);
(iii) a Superior Offer is made to the Company that is not withdrawn and continues to be a Superior Offer and is set forth in a final and definitive written agreement submitted to the Company subject only to the Company’s Board acceptance thereof (the “Definitive Third Party Agreement”);
(iv) the Company shall have provided to Parent four Business Days’ prior written notice (unless such Superior Offer is made fewer than four Business Days prior to the Company Stockholders Meeting in which case such notice shall be given as promptly as practicable) (a “Notice of Directors maySuperior Offer”) which shall state expressly (1) that the Company has received a Superior Offer, (2) the material terms and conditions of the Superior Offer and the identity of the Person or Group making the Superior Offer, and (3) that it intends to effect a Change of Recommendation and the manner and timing in which it intends to do so, and shall have provided Parent with a copy of the Definitive Third Party Agreement concurrently with the delivery of the Notice of Superior Offer;
(v) the Company shall have provided to Parent any nonpublic information delivered by the Company to the Person or Group making the Superior Offer (to the extent such nonpublic information has not been previously delivered by the Company to Parent) and, during the four Business Day period referred to in subclause (iv) above, if it requested by Parent, shall have engaged in good faith negotiations with Parent to amend this Agreement in such a manner that the Superior Offer would no longer be a Superior Offer;
(vi) Parent shall not have, within four Business Days of Parent’s receipt of the Notice of Superior Offer, made an offer that the Company Board by a majority vote concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel and a financial advisor of national standing) to be at least as favorable, from a financial point of view, to the Company’s stockholders (in their capacities as stockholders) as such Superior Offer (it being agreed that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company Board shall have given convene a meeting to consider any such offer by Parent and Merger Sub prompt written notice advising them of (x) following the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)receipt thereof, (B) that the Company shall have given Parent and Merger Sub three (3) Board will not effect a Change of Recommendation for four Business Days (the “Notice Period”) after delivery receipt by Parent of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, of Superior Offer and the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryDefinitive Third Party Agreement, and (C) any change to the Company’s Board of Directors shall have determined in good faith, after considering the results financial or other material terms of such negotiations and giving effect Superior Offer shall require a new Notice of Superior Offer to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in new four Business Day period under this clause (Bvi)); and
(vii) of this paragraph any revisions are made to the Superior ProposalCompany Board, if applicableby a majority vote, and the Company’s Board of Directors has concluded in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change counsel), that, in the purchase price or form light of consideration in such Superior Proposal shall be deemed a material revisionOffer and any offer made by Parent pursuant to Section 5.3(d)(vi), the Company shall deliver Board is required to effect a new written notice Change of Recommendation in order to Parent and shall comply with the requirements of this Section 5.4(d) with respect its fiduciary obligations to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changestockholders under applicable Legal Requirements.
Appears in 1 contract
Sources: Merger Agreement (Virage Logic Corp)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger and enter into a written agreement memorializing such Superior Proposal, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), only if all of the following conditions in clauses (i) through (viii) are met:
(i) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(ii) The Stockholders’ Meeting has not occurred;
(iii) The Company shall have (A) provided to Parent written notice which shall state expressly (1) that the Company has received a Superior Offer, (2) the material terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer, and (3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent a copy of all written materials delivered to the Person or group making the Superior Offer in connection with such Superior Offer, and (C) made available to Parent all other materials and information made available to the Person or group making the Superior Offer in connection with such Superior Offer;
(iv) The Board of Directors of the Company has concluded in good faith, after receipt of advice of its outside legal counsel, that, in light of such Superior Offer, the failure of the Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable law;
(v) The Company shall not have breached any of the provisions set forth in Section 5.2 or this Section 5.3;
(vi) At least two (2) business days shall have elapsed from the provision by the Company to Parent of the information specified in Section 5.3(d)(iii);
(vii) During the two (2) business day period specified in Section 5.3(d)(vi), the Company negotiates with Parent in good faith with respect to adjustments to the terms and conditions of this Agreement that Parent may suggest during such period; and
(viii) During or following the two (2) business day period specified in Section 5.3(d)(vi), the Board of Directors of the Company does not conclude in good faith (after consultation with its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent counsel and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorsadvisor) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Acquisition Proposal no longer constitutes a Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeOffer.
Appears in 1 contract
Sources: Merger Agreement (Coherent Inc)
Change of Recommendation. Notwithstanding anything in this Agreement contained herein to the contrary, at any time prior to obtaining such time as the Company Required Stockholder ApprovalApprovals have been obtained, in response to the receipt of a Superior Offer, the Company’s Board of Directors of the Company may, subject to the further provisions of this Section 5.3(d), (i) withhold, withdraw, amend or modify its recommendation in favor of the Company Proposals and (ii) terminate this Agreement (any of the actions described in clauses (i) and (ii), a “Permitted Fiduciary Action”), if it concludes (in good faith the case of clause (after consultation with its financial advisors and outside legal advisorsi) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, or (ii)) (A) the Company shall have given Parent Superior Offer has been made and Merger Sub prompt written notice advising them of has not been withdrawn and continues to be a Superior Offer, (xB) the decision Board of Directors of the Company’s Company has concluded in good faith, after receipt of advice of outside legal counsel, that, in light of such Superior Offer, the failure of the Board of Directors to take such action and Permitted Fiduciary Action is reasonably likely to result in a breach of its fiduciary obligations to the reasons therefor stockholders of the Company under applicable law and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (BC) the Company shall have complied in all material respects with subsections (a), (b) and (c) of this Section 5.3; provided, that, in addition to the foregoing requirements of this Section 5.3(d), the Company may take such Permitted Fiduciary Action only if (x) it has first given Parent at least three full business days (calculated as provided in Section 5.3(c)) prior written notice that it is prepared to take such Permitted Fiduciary Action and Merger Sub (y) during such three (3) Business Days (business day period, if Parent so requests, the “Notice Period”) after delivery Company negotiates with Parent in good faith concerning a possible amendment of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during and the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (Merger which could cause such Superior Offer to the extent Parent desires cease to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeOffer.
Appears in 1 contract
Sources: Merger Agreement (Green Mountain Coffee Roasters Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to Following the contrary, at any time prior to obtaining receipt of a Takeover Proposal received by the Company Stockholder Approvalon or before the Initial Proposal Deadline that as of the Final Change Deadline is a Superior Proposal, the Company’s Board of Directors (or a committee thereof) may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that on or before the failure to take such action would be inconsistent with its fiduciary duties under applicable LawFinal Change Deadline, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) cause the Company shall have given Parent to terminate this Agreement pursuant to Section 7.1(c)(i) and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors enter into or seek to take such action and the reasons therefor and enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (y) in the event case of a Superior Proposal that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the decision relates tender or exchange offer (any such termination, whether caused by the Board of Directors or a committee thereof, and actions described under clause (x) or (y) above, a “Change of Recommendation”), if all of the following conditions in clauses (i) through (iv) are met:
(i) the Superior Proposal has been made and has not been withdrawn and continues to an Alternative Transaction be a Superior Proposal;
(ii) the Company has (A) provided to Parent five (5) Business Days’ prior written notice which shall state expressly (x) that it has received a Superior Proposal, a summary of (y) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c)z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) made available to Parent all materials and information made available to the Person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have “matched” such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel and financial advisor);
(iii) the Company shall have given Parent and Merger Sub three (3complied with Section 5.2(c) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent not have breached in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment any material respect any of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments other provisions set forth in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and Section 5.2; and
(Civ) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice have paid to Parent and shall comply with the requirements of this termination fee set forth in Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d7.2(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the condition in Section 7.1(a) has been satisfied, the Company Stockholder ApprovalBoard may make a Change of Recommendation in connection with a Superior Proposal or in response to an Intervening Event, the Company’s Board of Directors mayin either case, if it concludes the Company Board determines in good faith (faith, after consultation with its financial advisors advisor and outside legal advisors) counsel, that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make or may terminate this Agreement pursuant to Section 8.3(b) to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to such a Superior Proposal; provided provided, however, that prior to any the Company Board shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) complied in the event the decision relates to an Alternative Transaction Proposal, a summary of the all material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided respects with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and 6.2(g);
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three at least five (35) Business Days business days in advance (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(d) with respect to such Superior Proposal;
(or make another proposaliii) andthe Company shall have, and shall have caused its financial and legal advisors to be available, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate for negotiations with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any material revisions to the Company’s Board terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and outside legal advisorsthe revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to three (3) business days (it being understood that the delivery of any such new Determination Notice shall not shorten the original five (5) business day Notice Period); Table of Contents (iv) at or following the end of such Notice Period (inclusive of any Notice Period following the delivery of any new Determination Notice(s) in accordance with Section 6.2(g)(iii)), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors advisor and outside legal advisors) that such revisions are material (it being understood that any change counsel, that, in the purchase price or form case of consideration a Change of Recommendation in connection with a Superior Proposal, such Acquisition Proposal remains a Superior Proposal shall (including taking into account any adjustments in the terms of this Agreement proposed by Parent in connection with Section 6.2(g)(iii) above) and that failure to take such action would continue to be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply inconsistent with the requirements directors’ fiduciary duties under applicable Law (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the end of this Section 5.4(d) with respect to such new written notice except that the new latest Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred pursuant to in clause (Ciii) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(dabove), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.; and
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contraryany provision of Section 6.02(e), at any time prior to the earlier to occur of the Offer Closing and obtaining the Company Stockholder Approval, the Company’s Company Board of Directors may, may effect an Adverse Recommendation Change only if it concludes the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary, the Company Board shall not be entitled to exercise its right to make an Adverse Recommendation Change or, solely with regards to a Superior Proposal, terminate this Agreement pursuant to Section 9.01(f) (x) unless the Company shall have provided prior written notice to Parent and Sub, at least three (3) business days in advance, that it will effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(f) and specifying the reasons therefor (a “Notice of Intended Recommendation Change; provided ”) and (y):
(i) if such Adverse Recommendation Change is not being made as a result of a Superior Proposal, during such three (3) business day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent to amend this Agreement in such a manner that prior to any would otherwise obviate the need for such Adverse Recommendation Change, ; or
(Aii) if such Adverse Recommendation Change or termination is being made as a result of a Superior Proposal:
(1) the Company Notice of Intended Recommendation Change shall have given Parent and Merger Sub prompt written notice advising them of (x) specify the decision identity of the Company’s Board of Directors to take party making such action Superior Proposal and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms thereof and conditions copies of all relevant documents relating to such Superior Proposal (it being understood and agreed that any material amendment to the Alternative Transaction terms of any such Superior Proposal (and other information requested in any event including any amendment to be provided any price term thereof), shall require a new Notice of Intended Recommendation Change and compliance with respect thereto pursuant to the requirements of this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c6.02(f), (B) except that the Company shall have given Parent prior written notice period and Merger Sub corresponding references to a three (3) Business Days business day period shall be reduced to a one (the “1) business day for any such new Notice Period”of Intended Recommendation Change); 35
(2) after delivery providing any such Notice of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodIntended Recommendation Change, the Company shall, and shall direct cause its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Sub in good faith (to the extent Parent desires and Sub desire to negotiate) during such three (3) business day period (or one business day period in the case of a new Notice of Intended Recommendation Change) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute and the other agreements contemplated hereby; and
(iii) in the judgment case of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorseither clause (i) or clause (ii), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, Company Board shall have considered in good faith any adjustments to make such adjustments in the terms and conditions of this Agreement so (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third business day of such Adverse three (3) business day period (or the first business day of such one (1) business day period for any such new Notice of Intended Recommendation Change is otherwise not necessary, Change) and (C) the Company’s Board of Directors shall have determined that (x) in good faith, after considering the results case of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction a Superior Proposal, if applicable, continues the Superior Proposal would continue to constitute a Superior Proposal if such adjustments were to be given effect, or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2y) in the event the Company’s Board case of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d)not being made as a result of a Superior Proposal, no adjustment has been made that would obviate the procedures referred to in clauses (A)need for such Adverse Recommendation Change, (B) and (Cy) the findings contemplated by clause (i) above shall apply anew and shall also apply continue to any subsequent withdrawal, amendment or changebe applicable such that an Adverse Recommendation Change should be made the Superior Proposal would continue to constitute a Superior Proposal if such adjustments were to be given effect.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.2(b), at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors of the Company may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make a Change of Recommendation and, in the case of a Superior Proposal or an Adverse Recommendation Change; provided that prior Intervening Event after which Parent does not timely deliver a Continuation Notice terminate this Agreement in accordance with Section 8.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(Aii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that the decision Company has received a Superior Proposal or determined the existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given provide to Parent a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith Superior Proposal (to the extent Parent desires not previously delivered or made available to negotiateParent), and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to make amend this Agreement in such adjustments a manner that the Superior Proposal would no longer be a Superior Proposal or, in the terms case of an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s Board of Directors has in good faith determined (after the receipt of advice from and conditions of this Agreement so that, if applicable, such consultation with its outside legal counsel and the Company Financial Advisor) results in the Alternative Transaction Proposal ceases that had been determined to constitute (be a Superior Proposal no longer being a Superior Proposal or, in the judgment case of an Intervening Event, addresses the basis for a Change of Recommendation;
(iv) the Board of Directors of the Company has concluded in good faith, after receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal or Intervening Event and after considering any adjustments or negotiations pursuant to the preceding clause (ii), that the Company’s Board of Directors, after consultation ’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect fiduciary obligations to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requiredstockholders of the Company under Delaware Law; provided further that, and
(1v) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 8.1(a), at any time prior in response to obtaining the receipt of a Superior Proposal (i) the Company Stockholder ApprovalBoard may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to the Shareholders, may recommend that the Shareholders accept the tender or exchange offer (ii) the Company Board, the Company or any other Acquired Company may approve, endorse, or recommend any Superior Proposal, or (iii) the Company or any other Acquired Company may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Proposal or transaction contemplated thereby (any of the foregoing actions set forth in (i), (ii) or (iii), whether by the Company Board or a committee thereof, a “Change of Recommendation”), if all of the following conditions are met:
i. the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel that a Superior Proposal has been made and not withdrawn;
ii. the Shareholders have not approved this Agreement in accordance with applicable Legal Requirements;
iii. the Company shall have delivered to Merger Corp written notice at least five (5) Business Days prior to publicly effecting such Change of Recommendation which states expressly (1) that the Company has received a Superior Proposal, (2) the final terms and conditions of the Superior Proposal and the identity of the Person or group making the Superior Proposal, and (3) that the Company intends to effect a Change of Recommendation; and
iv. the Company Board of Directors may, if it concludes in good faith shall have determined (1) after consultation with its financial advisors advisor, that the terms of the Superior Proposal are more favorable to the Shareholders of the Company than the Merger and (2) after consultation with outside legal advisors) that counsel, the failure to take effect a Change of Recommendation could reasonably result in a breach of the Company Board’s fiduciary duties to the Shareholders under applicable Legal Requirements. In addition, the Company Board may withdraw, modify or fail to make, in a manner adverse to Merger Corp, the recommendation of the Company Board in favor of the adoption and approval of this Agreement and the approval of the Merger in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of this Agreement (an “Intervening Event”), if the Company Board determines in good faith after consultation with outside legal counsel, that in light of such action would be inconsistent with Intervening Event, the failure of the Company Board to effect such a change of recommendation could reasonably result in a breach of its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeLegal Requirements.
Appears in 1 contract
Sources: Merger Agreement (National Investment Managers Inc.)
Change of Recommendation. Neither the Company Board nor any committee thereof shall (i) (A) change, qualify, withdraw, withhold, or modify (or propose publicly to change, qualify, withdraw, withhold, or modify) in a manner adverse to Parent or Merger Sub the approval of this Agreement, the Merger and the other Transactions, or the recommendation by the Company Board that the stockholders of the Company adopt this Agreement, (B) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) any alternative Company Takeover Proposal or agree to take any such action, or (C) fail to recommend against any alternative Company Takeover Proposal that is subject to Regulation 14D under the Exchange Act (which failure to recommend shall be made by means of a Solicitation/Recommendation Statement on Schedule 14D-9, if applicable, within ten (10) Business Days after the commencement (determined using Rule 14d-1(g)(3) under the Exchange Act) of such alternative Company Takeover Proposal) (any action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) approve, recommend or otherwise declare advisable, or allow the Company or any Company Subsidiary to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar agreement relating to, an alternative Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”), or resolve or agree to take any such action. Notwithstanding anything in this Agreement to the contrary, but subject to Section 4.7(e), the Company Board may at any time prior to obtaining the Effective Time (1) effect an Adverse Recommendation Change in response to an alternative Company Takeover Proposal and concurrently cause the Company Stockholder Approvalto terminate this Agreement pursuant to Section 6.1(d)(ii), if the Company Board concludes in good faith, after consultation with the Company’s financial advisor, that such Company Takeover Proposal constitutes a Superior Company Proposal and the Company Board of Directors may, if it concludes in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under applicable Applicable Law, make or (2) effect an Adverse Recommendation Change; provided that prior Change following or in response to any such Adverse Recommendation Changematerial event, fact or circumstance, or a material development or change in any facts or circumstances (A) the Company shall have given Parent and Merger Sub prompt written notice advising them including any acceleration or deceleration of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (existing changes to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsacceleration or deceleration), a Superior Proposal orthe existence, magnitude or consequences of which were not known and were not reasonably foreseeable by the Company Board at or prior to the date hereof (and not relating to any Company Takeover Proposal, which shall be governed by the foregoing clause (1)) (such material event, fact, circumstance, development or change, an “Intervening Event”) if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined concludes in good faith, after considering consultation with outside counsel, and taking into account all such factors as the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anyCompany Board may deem appropriate, that such Alternative Transaction Proposal, if applicable, continues the failure to constitute a Superior Proposal or that effect such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) and/or termination would reasonably be expected to constitute a breach of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changefiduciary duties under Applicable Law.
Appears in 1 contract