Common use of Adverse Company Recommendation Change Clause in Contracts

Adverse Company Recommendation Change. Further, the Board of Directors of the Company shall not make an Adverse Company Recommendation Change in response to a Company Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), unless (i) such Company Acquisition Proposal constitutes a Superior Proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under Applicable Law, (ii) the Company promptly notifies Parent, in writing at least three (3) Business Days before taking that action, of its intention to do so and attaching the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Company Acquisition Proposal, (iii) the Company negotiates, and has used its reasonable best efforts to cause its Representatives to negotiate, in good faith with Parent during such negotiation period to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, and (iv) Parent does not make, within three (3) Business Days after its receipt of that written notification, an offer that, in the good faith judgment of the Board of Directors of the Company, is at least as favorable to the stockholders of the Company as such Superior Proposal. In the event that during the notice periods described in the preceding sentence any revisions are made to terms of such Superior Proposal and the Board of Directors of the Company in its good faith judgment reasonably determines that such revisions are material, the Company shall, in each case, deliver to Parent an additional notice and a notice period of three (3) Business Days shall have recommenced from the date of receipt by Parent of such additional notice unless the event requiring notice pursuant to this Section 6.03(d) occurred less than three (3) Business Days prior to the Company Stockholder Meeting, in which case the Company shall deliver notice to Parent of such event as promptly as reasonably practicable.

Adverse Company Recommendation Change. FurtherNotwithstanding anything in this Agreement to the contrary, the Company Board of Directors of may at any time prior to the Company shall not Acceptance Time, (i) make an Adverse Company Recommendation Change in response to an Intervening Event and/or a Company Acquisition Superior Proposal or (or ii) terminate this Agreement pursuant to Section 10.01(d)(i))9.1(d)(i) and concurrently enter into a definitive agreement with respect to a Superior Proposal; provided, unless however, the Company Board shall not take any action described in the foregoing clauses (i) and (ii) unless (A) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that (1) such Company Acquisition Proposal constitutes a Superior Proposal and or (2) that the an Intervening Event has occurred and, in either case, that failure to take such action would be reasonably likely to be inconsistent with the its fiduciary duties under applicable law, (B) the Company shall have continuously complied with its obligations under this Section 7.4, and, with respect to a termination pursuant to Section 9.1(d)(i), the Company shall have complied with all applicable requirements of Section 9.1(d)(i) and Section 9.2(b) (including the Board of Directors payment of the Company Termination Fee and Termination Expenses prior to the Company’s stockholders under Applicable Law, such termination) and (iiC) the Company promptly notifies ParentParent in writing, in writing at least three (3) Business Days before taking that such action, of such determination of the Company Board and of its intention to do so effect an Adverse Company Recommendation Change in response to such Intervening Event or Superior Proposal, and attaching shall have complied with the most current version remaining provisions of this Section 7.4(d). Such notice in response to an Intervening Event shall specify in reasonable detail the facts underlying the decision by the Company Board to take such action and during such three (3) Business Day period, the Company shall, if requested by Parent, engage in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Adverse Company Recommendation Change, in which case the Company Board shall not take any action described in clauses (i) and (ii) above. Such notice in response to a Superior Proposal shall attach a reasonably detailed description of the proposed agreement and terms under which such Superior Proposal is proposed to be consummated and the identity of identify the Third Party making such Superior Proposal and, during such three (3) Business Day period, the Company Acquisition Proposal, shall (iii) the Company negotiates, and has used its reasonable best efforts to shall cause its Representatives to negotiate, financial and legal advisors to) negotiate with Parent in good faith with (to the extent Parent during desires to negotiate) to make such negotiation period to revise adjustments in the terms and conditions of this Agreement such so that it would cause such Superior Proposal would cease to no longer constitute a Superior Proposal, Proposal (it being understood and agreed that (x) the delivery of such notice shall not in and of itself constitute an Adverse Company Recommendation Change and (ivy) Parent does not make, within any material amendment to the financial terms or other material terms of such Superior Proposal following the initial three (3) Business Days after its receipt of that period shall require a new written notification, an offer that, in the good faith judgment of the Board of Directors of the Company, is at least as favorable to the stockholders of notification from the Company as such Superior Proposal. In the event that during the notice periods described in the preceding sentence any revisions are made to terms of such Superior Proposal and the Board of Directors of the Company in its good faith judgment reasonably determines that such revisions are material, the Company shall, in each case, deliver to Parent an additional notice and a notice period of new three (3) Business Days shall have recommenced from the date of receipt by Parent of such additional notice unless the event requiring notice pursuant to Day good faith negotiations period under this Section 6.03(d7.4(d) occurred less than (it being understood and agreed that there shall be a maximum of one (1) such three (3) Business Days prior to Day negotiations period and, thereafter, each successive negotiation period shall be two (2) Business Days) and, during such time, the Company Stockholder Meeting, Board shall not take any action described in which case the Company shall deliver notice to Parent of such event as promptly as reasonably practicableclauses (i) and (ii) above.

Adverse Company Recommendation Change. FurtherNotwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company shall not make or an authorized committee thereof may at any time prior to the Company Stockholder Approval effect an Adverse Company Recommendation Change if it has complied in all material respects with this Section 6.03 in response to a Company Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), unless (i) such Company Acquisition Proposal constitutes to an Intervening Event and/or (ii) to a Superior Proposal and Proposal, in each case, if the Board of Directors of the Company or an authorized committee thereof determines in good faith, after consultation with outside legal counsel, that the failure to take such action would could reasonably be determined to be inconsistent with the its fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under Applicable Law; provided, however, that the Company shall (x) have provided prior written notice to Parent, (iiA) the Company promptly notifies Parent, in writing at least three four (34) Business Days before taking that action, in advance in the case of an Intervening Event and (B) at least four (4) Business Days in advance in the case of a Superior Proposal of its intention to do so effect an Adverse Company Recommendation Change and, in the case of a Superior Proposal, such prior written notice shall describe the identity and attaching the most current version material terms and conditions of the proposed agreement under which such Superior Proposal that is the basis of such action, including with such notice a copy of the relevant proposed to be consummated and the identity of transaction agreements with the Third Party making the Company Acquisition such Superior Proposal, (iiiy) during the four (4) Business Day period following the Company’s delivery of written notice of the Superior Proposal, the Company negotiatesshall, and has used its reasonable best efforts to shall cause its Representatives to negotiatefinancial and legal advisors to, negotiate with Parent and Merger Subsidiary in good faith with (to the extent that Parent during and Merger Subsidiary desire to negotiate) to make such negotiation period modification or adjustments in the terms and conditions of this Agreement so the Superior Proposal ceases to revise constitute a Superior Proposal and (z) following the end of such four (4) Business Day period, the Company’s Board of Directors or an authorized committee thereof shall have determined in good faith, taking into account any changes to the terms of this Agreement such that it would cause such proposed in writing by the Parent to the Company in response to the notice of the Superior Proposal or otherwise, that the Superior Proposal giving rise to no longer such notice of the Superior Proposal continues to constitute a Superior Proposal, and . The Company will advise Parent promptly (iv) Parent does not make, within three but in no event later than one (31) Business Days Day) after its receipt of that written notification, an offer that, in the good faith judgment of the Board of Directors of the Company, is at least as favorable any amendment to the stockholders of the Company as financial terms or any other material amendment to such Superior Proposal. In the event that during the notice periods described in the preceding sentence any revisions are made to terms of such Superior Proposal and the Board of Directors of the Company in its good faith judgment reasonably determines that such revisions are material, the Company shall, in each case, deliver to Parent an additional notice and a notice period of three (3) Business Days shall have recommenced from the date of receipt by Parent of such additional notice unless the event requiring notice pursuant to this Section 6.03(d) occurred less than three (3) Business Days prior to the Company Stockholder Meeting, in which case the Company shall deliver notice to Parent of such event as promptly as reasonably practicable.

Adverse Company Recommendation Change. FurtherNotwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company may at any time prior to the earlier to occur of the Acceptance Time or the Company Stockholder Approval (i) make an Adverse Company Recommendation Change in response to an Intervening Event and/or a Superior Proposal and (ii) terminate this Agreement pursuant to Section 10.01(d)(i) to enter into a definitive agreement with respect to a Superior Proposal; provided, however, the Board of Directors of the Company shall not make an Adverse Company Recommendation Change take any action described in response to a Company Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), unless the foregoing clauses (i) and (ii) unless (A) the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Company Acquisition Proposal constitutes a Superior Proposal or Intervening Event and that the failure to take such action do so would be inconsistent with the reasonably likely to violate its fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under Applicable Law, (iiB) the Company shall have complied with its obligations under this Section 6.04, and (C) the Company promptly notifies ParentParent in writing, in writing at least three (3) Business Days before taking that such action, of such determination of the Board of Directors of the Company and of its intention to do so effect an Adverse Company Recommendation Change in response to such Intervening Event or Superior Proposal. Such notice in response to an Intervening Event shall specify in reasonable detail the facts underlying the decision by the Board of Directors of the Company to take such action and attaching during such three (3) Business Day period, the Company shall, if requested by Parent, engage in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Adverse Company Recommendation Change, in which case the Board of Directors of the Company shall not take any action described in clauses (i) and (ii) above. Such notice in response to a Superior Proposal shall attach the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of identify the Third Party making the Company Acquisition Proposal, (iii) the Company negotiates, and has used its reasonable best efforts to cause its Representatives to negotiate, in good faith with Parent during such negotiation period to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposaland, and (iv) Parent does not make, within during such three (3) Business Days after Day period, the Company shall (and shall cause its receipt of that written notification, an offer that, financial and legal advisors to) negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the good faith judgment terms and conditions of the Board of Directors of the Company, is at least as favorable this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal (it being understood and agreed that any material amendment to the stockholders of the Company as such Superior Proposal. In the event that during the notice periods described in the preceding sentence any revisions are made to financial terms or other material terms of such Superior Proposal and the Board of Directors of shall require a new written notification from the Company in its good faith judgment reasonably determines that such revisions are material, the Company shall, in each case, deliver to Parent an additional notice and a notice period of new three (3) Business Days shall have recommenced from the date of receipt by Parent of such additional notice unless the event requiring notice pursuant to Day period under this Section 6.03(d) occurred less than three (3) Business Days prior to the Company Stockholder Meeting, in which case the Company shall deliver notice to Parent of such event as promptly as reasonably practicable6.04(d)).