Adverse Recommendation Change. Except as set forth in this Section 5.02(d), the Company Board shall not (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the Merger, (B) fail to include the Company Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited within ten (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoing, an “Adverse Recommendation Change”) or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary, at any time prior to the Company Stockholders Meeting, the Company Board may (I) effect an Adverse Recommendation Change in response to an Intervening Event, if and only if the Company Board has determined in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if: (i) the Company has provided prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change; (ii) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and (iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company shall be required to comply with the obligations under the foregoing clauses (ii) and (iii) with respect to each Superior Proposal it receives or any Intervening Event the Company Board identifies.
Appears in 2 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (Atmi Inc)
Adverse Recommendation Change. Except as set forth in this Section 5.02(d), (a) Each of the Special Committee and the Company Board shall not (i) recommend that the Company’s stockholders tender their Shares in the Offer and, if stockholder approval is required by Delaware Law, adopt this Agreement and the transactions contemplated hereby and (Aii) changenot fail to make, withhold, withdraw, qualify or modify, modify in a manner adverse to Parent (the Special Committee Recommendation or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the Merger, (B) fail to include the Company Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company, provided that a customary “stop, look and listen” communication by the Company Board pursuant Recommendation or publicly recommend or announce its intention to Rule 14d-9(f) of take any action or make any statement inconsistent with the Exchange Act shall not be prohibited within ten Special Committee Recommendation or the Company Board Recommendation (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoingcollectively, an “Adverse Recommendation Change”) or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement). Notwithstanding anything herein to the contraryHowever, at any time prior to the Acceptance Date, if the Special Committee determines in good faith (after considering the advice of its outside legal and financial advisors) that it would be inconsistent with its fiduciary duties under Delaware Law to continue to recommend that the Company’s stockholders tender their Shares in the Offer and, if stockholder approval is required by Delaware Law, adopt this Agreement and the transactions contemplated hereby, then the Special Committee and the Company Stockholders MeetingBoard (acting upon the recommendation of the Special Committee) may make an Adverse Recommendation Change, in which case the obligations of the Special Committee and the Company Board under this Section 6.03 shall cease (but nothing in this Section 6.03 shall affect the Company’s obligations under Section 6.02 (regardless of whether there has been an Adverse Recommendation Change)); provided that the Special Committee and the Company Board may (I) effect not make an Adverse Recommendation Change in response to an Intervening Event, if and only if until after at least 48 hours following Parent’s receipt of written notice from the Company advising Parent that the Special Committee and/or the Company Board has determined in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:
(i) the Company has provided prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change;
(ii) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period intends to make such adjustments in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the an Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel reasons therefor and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company shall be required to comply with the obligations under the foregoing clauses (ii) and (iii) with respect to each Superior Proposal it receives or any Intervening Event Special Committee and/or the Company Board identifiesconsiders any modifications proposed by Parent during such 48-hour period in order to eliminate the need for such Adverse Recommendation Change.
Appears in 2 contracts
Samples: Merger Agreement (Roche Investments USA Inc.), Merger Agreement (Genentech Inc)
Adverse Recommendation Change. (a) Except as set forth in this permitted by Section 5.02(d5.3(b), MLP shall not, and shall cause its Subsidiaries not to, and the Company Board foregoing shall use their commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly (i) (A) change, withhold, withdraw, qualify modify or modifyqualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify)Parent, the Company MLP Board Recommendation with respect to the Merger, or (Bii) fail to include the Company MLP Board Recommendation in the Proxy Statement, Statement (Cthe taking of any action described in clauses (i) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal, or (Dii) fail being referred to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited within ten (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoing, as an “Adverse Recommendation Change”) or (ii) authorize). Without limiting the foregoing, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposalit is understood that any violation of the foregoing restrictions by MLP’s Subsidiaries, or cause MLP’s Representatives, other than any violation caused by or permit at the Company or any direction of its Subsidiaries Parent, shall be deemed to enter into any Alternative Acquisition Agreement. be a breach of this Section 5.3 by MLP.
(b) Notwithstanding anything herein to the contrarycontrary in this Agreement, at any time prior to obtaining the Company Stockholders MeetingUnitholder Approval, and subject to compliance in all material respects with this Section 5.3(b), the Company Board Conflicts Committee may (I) make an Adverse Recommendation Change on behalf of the MLP Board, provided, however, that the Conflicts Committee may not effect an Adverse Recommendation Change in response to an Intervening Event, if and only if unless:
(i) the Company Board has determined Conflicts Committee determines in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that failure to effect an Adverse Change Recommendation would be adverse to the Company Board may only take interests of the actions described in (x) clause (II) if Unaffiliated Unitholders or would otherwise be a breach of its duties under the Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Partnership Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:Law;
(iii) the Company Conflicts Committee has provided prior written notice to Parent at least five days in advance of its or the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action, unless at the time such notice is otherwise required to be given there are less than five days prior to the Unitholders Meeting, in which case the Conflicts Committee shall provide as much notice shall specify as is practicable (x) in the case period inclusive of a Superior Proposalall such days, the material terms of “MLP Notice Period”); and
(iii) during the Superior Proposal and shall include a copy of MLP Notice Period, the relevant proposed transaction agreements withConflicts Committee has negotiated, and the identity ofhas used its commercially reasonable efforts to cause its financial advisors and outside legal counsel to negotiate, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change;
(ii) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as so that the failure to effect such Adverse Recommendation Change would permit not be adverse to the Company interests of the Unaffiliated Unitholders or would not otherwise be a breach of its duties under the Company Board not to take such actions; Partnership Agreement and applicable Law, provided, however, that any material change the Conflicts Committee shall take into account all changes to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing proposed by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant in determining whether to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the make an Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company shall be required to comply with the obligations under the foregoing clauses (ii) and (iii) with respect to each Superior Proposal it receives or any Intervening Event the Company Board identifiesChange.
Appears in 2 contracts
Samples: Merger Agreement (Hoegh LNG Partners LP), Merger Agreement (Hoegh LNG Holdings Ltd.)
Adverse Recommendation Change. Except as set forth in this Section 5.02(d), the Company Board shall not (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the Merger, (B) fail to include the Company Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited within ten (10) Business Days after commencement of such tender offer or exchange offer (any of Notwithstanding the foregoing, an “Adverse Recommendation Change”) or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary, at any time after the date of this Agreement and prior to the Company Stockholders Meetingtime the Imara Stockholder Approval is obtained, if (and only if) prior to taking such action, the Company Board may (I) effect an Adverse Recommendation Change in response to an Intervening Event, if and only if the Company Imara Board has determined in good faith, after consultation with its outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such that an Acquisition Proposal made after the date hereof that did not result from a material breach of this Section 6.4 constitutes a Superior Proposal and cause or permit that a failure to take action could reasonably be expected to be inconsistent with the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; providedfiduciary duties of the Imara Board under applicable Law, however, that the Company Imara Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant make an Adverse Recommendation Change; provided that, prior to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:
so making an Adverse Recommendation Change, (i) the Company Imara has provided given Cardurion at least [**] prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) Business Days action specifying, in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposalreasonable detail, the material terms reasons therefor, and providing, to the extent not already provided to Cardurion, a copy of the Superior Proposal and shall include a copy of the relevant any proposed transaction agreements withCompeting Acquisition Agreements, and the identity of, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change;
(ii) after providing during such notice and prior period, Xxxxx agrees to taking negotiate in good faith with Xxxxxxxxx, to the extent Cardurion wishes to negotiate, any revisions to the terms of the transactions contemplated hereby proposed by Xxxxxxxxx, (iii) at the end of such actionsnotice period, the Company Imara Board shall havehave considered any revisions to the terms of this Agreement proposed in writing by, and that, if accepted would be, legally binding on Cardurion, and shall have caused its Representatives to, negotiate with Parent determined in good faith (faith, after consultation with its independent financial advisors and outside legal counsel, that the Superior Proposal would nevertheless continue to constitute a Superior Proposal and that the extent Parent desires to negotiate) during such three (3) Business Day period failure to make such adjustments Adverse Recommendation Change could reasonably be expected to be inconsistent with the Imara Board’s fiduciary duties under applicable Law, and (iv) in the terms and conditions event of this Agreement as would permit the Company or the Company Board not to take such actions; provided, that any material change to any of the financial terms or any other material terms of such Superior Proposal or Proposal, Imara shall, in each case, have delivered to the facts and circumstances relating to such Intervening Event shall require a new Cardurion an additional notice including the details required by the notice consistent with that described in clause (i) above of this proviso and the Company a new notice period under clause (i) of this proviso shall commence (except that such new notice period shall be required [**] (as opposed to comply again with the requirements of this Section 5.02(d)(y[**])) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company during which time Imara shall be required to comply with the obligations under the foregoing requirements of this Section 6.4.6 anew with respect to such additional notice, including clauses (iii) and through (iii) above of this proviso; provided, further, that whether or not there is an Adverse Recommendation Change in response to a Superior Proposal, unless this Agreement has been terminated in accordance with respect to each Superior Proposal it receives or any Intervening Event Article 8, the Company Imara Board identifiesshall submit this Agreement for approval by the Imara stockholders at the Imara Stockholders’ Meeting.
Appears in 1 contract
Adverse Recommendation Change. Except as set forth in this Section 5.02(d), the Company Board shall not (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the MergerRecommendation, (B) fail to include the Company Recommendation in the Proxy Statement/Prospectus, (C) approve approve, declare advisable or recommend, or publicly propose to approve approve, declare advisable or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the CompanyCompany (including, provided for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a customary “stop, look and listen” communication failure to recommend against acceptance of such tender offer or exchange offer) by the Company Board pursuant to Rule 14d-9(f) earlier of the Exchange Act shall not be prohibited within ten (10) Business Days after commencement of such tender offer or exchange offer and two days prior to the Company Stockholders Meeting (provided, that, for the avoidance of doubt, a statement that the Company Board recommends against acceptance of such tender or exchange offer but, in accordance with Section 5.02, is engaging in discussions or negotiations with the person making such tender or exchange offer, shall not be deemed to be an Adverse Recommendation Change) or (E) if an Acquisition Proposal is made public, fail to reaffirm the Company Recommendation upon the request of Parent within ten Business Days after Parent requests such reaffirmation (it being acknowledged and agreed that the Company Board shall only be obligated to make one reaffirmation with respect to any Acquisition Proposal and one reaffirmation with respect to any amendment thereto) (any of the foregoingaction described in this clause (i), an “Adverse Recommendation Change”) or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary, at any time prior to obtaining the Company Stockholders MeetingStockholder Approval, the Company Board may (I) effect an Adverse Recommendation Change in a situation that is not in response to an Intervening Event, if and only a Superior Proposal if the Company Board has determined in good faith, after consultation with outside legal counsel counsel, that the failure to take such action effect an Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Applicable Law and or (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (faith, after consultation with its a financial advisors advisor of nationally recognized reputation and outside legal counsel), constitutes a Superior Proposal, authorize, adopt, adopt or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to in accordance with Section 8.01(d8.01(f) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i8.03(b) and (y) clauses clause (I) or (II) if:
(i) the Company has provided prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) four Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Superior Proposal, or (y) in cases the case of a proposed Adverse Recommendation Change not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change (and the Company shall keep Parent reasonably informed of any material developments with respect thereto) (it being agreed that neither (x) the delivery of such a notice by the Company nor (y) the public announcement that the Company Board (or any committee thereof) has received an Acquisition Proposal, is evaluating such Acquisition Proposal and has delivered such notice shall constitute an Adverse Recommendation Change);
(ii) after providing such notice and prior to taking such actionseffecting an Adverse Recommendation Change, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) four Business Day period to make such adjustments as requested by Parent in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take effect such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day periodAdverse Recommendation Change; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time New York City time on the third (3rd) fourth Business Day of such three (3) four Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to a proposed Adverse Recommendation Change not based on the actions described in clause (I) receipt of a Superior Proposal, after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the Adverse Recommendation Change and (B) with respect to the actions described in clause (IISection 5.02(d)(II), after consultation with a financial advisor of nationally recognized reputation and outside counsel and its financial advisorslegal counsel, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company effect (it being understood and agreed that any amendment to any financial or other material term of such Superior Proposal shall be required to comply require a new notice in accordance with the obligations under the foregoing clauses (iiSection 5.02(d)(i) and (iii) with respect to each Superior Proposal it receives or any Intervening Event the Company Board identifiesa new two Business Day period).
Appears in 1 contract
Samples: Merger Agreement (WestRock Co)
Adverse Recommendation Change. Except as set forth in this Section 5.02(d), the Company Board shall not (i) (A) change, withhold, withdraw, qualify or modify, in a manner adverse to Parent (or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the MergerRecommendation, (B) fail to include the Company Recommendation in the Proxy Statement/Prospectus, (C) approve approve, declare advisable or recommend, or publicly propose to approve approve, declare advisable or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the CompanyCompany (including, provided for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a customary “stop, look and listen” communication failure to recommend against acceptance of such tender offer or exchange offer) by the Company Board pursuant to Rule 14d-9(f) earlier of the Exchange Act shall not be prohibited within ten (10) Business Days after commencement of such tender offer or exchange offer and two days prior to the Company Stockholders Meeting (any provided, that, for the avoidance of doubt, a statement that the foregoingCompany Board recommends against acceptance of such tender or exchange offer but, in accordance with Section 5.02, is engaging in discussions or negotiations with the person making such tender or exchange offer, shall not be deemed to be an “Adverse Recommendation Change”) or (E) if an Acquisition Proposal is made public, fail to reaffirm the Company Recommendation upon the request of Parent within ten Business Days after Parent requests such reaffirmation (it being acknowledged and agreed that the Company Board shall only be obligated to make one reaffirmation with respect to any Acquisition Proposal and one reaffirmation with respect to any amendment thereto) (any action described in this clause (i), an "Adverse Recommendation Change") or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary, at any time prior to obtaining the Company Stockholders MeetingStockholder Approval, the Company Board may (I) effect an Adverse Recommendation Change in a situation that is not in response to an Intervening Event, if and only a Superior Proposal if the Company Board has determined in good faith, after consultation with outside legal counsel counsel, that the failure to take such action effect an Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ ' fiduciary duties under Applicable Law and or (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (faith, after consultation with its a financial advisors advisor of nationally recognized reputation and outside legal counsel), constitutes a Superior Proposal, authorize, adopt, adopt or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to in accordance with Section 8.01(d8.01(f) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i8.03(b) and (y) clauses clause (I) or (II) if:
(i) the Company has provided prior written notice to Parent of its or the Company Board’s 's intention to take such actions at least three (3) four Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Superior Proposal, or (y) in cases the case of a proposed Adverse Recommendation Change not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change (and the Company shall keep Parent reasonably informed of any material developments with respect thereto) (it being agreed that neither (x) the delivery of such a notice by the Company nor (y) the public announcement that the Company Board (or any committee thereof) has received an Acquisition Proposal, is evaluating such Acquisition Proposal and has delivered such notice shall constitute an Adverse Recommendation Change);
(ii) after providing such notice and prior to taking such actionseffecting an Adverse Recommendation Change, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) four Business Day period to make such adjustments as requested by Parent in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take effect such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day periodAdverse Recommendation Change; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time New York City time on the third (3rd) fourth Business Day of such three (3) four Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to a proposed Adverse Recommendation Change not based on the actions described in clause (I) receipt of a Superior Proposal, after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ ' fiduciary duties under Applicable Law not to effect the Adverse Recommendation Change and (B) with respect to the actions described in clause (IISection 5.02(d)(II), after consultation with a financial advisor of nationally recognized reputation and outside counsel and its financial advisorslegal counsel, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company effect (it being understood and agreed that any amendment to any financial or other material term of such Superior Proposal shall be required to comply require a new notice in accordance with the obligations under the foregoing clauses (iiSection 5.02(d)(i) and (iii) with respect to each Superior Proposal it receives or any Intervening Event the Company Board identifiesa new two Business Day period).
Appears in 1 contract
Adverse Recommendation Change. Except as set forth in this Section 5.02(d), Each of the Committee of Disinterested Directors and the Company Board shall (a) make the Committee Recommendation and the Company Board Recommendation, as applicable and (b) not (i) (A) change, withhold, withdraw, qualify qualify, fail to make or modify, modify in a manner adverse to Parent (the Committee Recommendation or publicly propose or resolve to change, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the Merger, (B) fail to include the Company Recommendation in the Proxy Statement, (C) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal, or (D) fail to publicly reaffirm the Company Recommendation within three (3) Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will be obligated to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), or (E) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company, provided that a customary “stop, look and listen” communication by the Company Board pursuant Recommendation or publicly recommend or announce its intention to Rule 14d-9(f) of take any action or make any statement inconsistent with the Exchange Act shall not be prohibited within ten Committee Recommendation or the Company Board Recommendation (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoingcollectively, an “‘‘Adverse Recommendation Change”) or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement). Notwithstanding anything herein to the contraryHowever, at any time prior to the Acceptance Date, if the Committee of Disinterested Directors determines in good faith (after considering the advice of its outside legal and financial advisors) that it would be inconsistent with its fiduciary duties under Indiana Law to continue to recommend that the Unaffiliated Shareholders accept the Offer, tender their Shares in the Offer, and to the extent required by Indiana Law, approve the Merger and this Agreement, then the Committee of Disinterested Directors and the Company Stockholders MeetingBoard (acting upon the recommendation of the Committee of Disinterested Directors) may make an Adverse Recommendation Change, in which case the obligations of the Committee of Disinterested Directors and the Company Board under this Section 6.02 shall cease (but nothing in this Section 6.02 shall affect the Company’s obligations under Section 6.05 (regardless of whether there has been an Adverse Recommendation Change)); provided, that the Committee of Disinterested Directors and the Company Board may (I) effect not make an Adverse Recommendation Change in response to an Intervening Event, if and only if until after at least 48 hours following Parent’s receipt of written notice from the Company advising Parent that the Committee of Disinterested Directors and/or the Company Board has determined in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:
(i) the Company has provided prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change;
(ii) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period intends to make such adjustments in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the an Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel reasons therefor and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company shall be required to comply with the obligations under the foregoing clauses (ii) and (iii) with respect to each Superior Proposal it receives or any Intervening Event Committee of Disinterested Directors and/or the Company Board identifiesconsiders any modifications proposed by Parent during such 48-hour period in order to eliminate the need for such Adverse Recommendation Change.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Emmis Communications Corp)
Adverse Recommendation Change. Except as set forth in this expressly permitted by Section 5.02(d6.4(e), the Company Board of Directors or any committee thereof shall not (i) ): (A) fail to recommend, or amend, change, qualify, withhold, withdraw, qualify withdraw or modify, in a manner adverse to Parent (modify the Company Recommendation or publicly propose or resolve state an intention to changedo any of the foregoing, withhold, withdraw, qualify or modify), the Company Recommendation with respect to the Merger, (B) fail to make or include the Company Recommendation in the Proxy Statement/Circular; (B) accept, (C) approve approve, endorse or recommend, or publicly propose to approve accept, approve, endorse or recommend to the stockholders of the Company, an Acquisition Proposal; (C) within the earlier of (x) five Business Days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two Business Days prior to the Company Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid or fail to send to the Company Shareholders a statement disclosing that the Company recommends rejection of such tender or exchange offer or take-over bid, and (2) publicly reaffirm (without qualification) the Company Recommendation (if previously made at such time); (D) following the disclosure or announcement of an Acquisition Proposal or at any other time following the reasonable request in writing by Parent (provided that Parent shall be entitled to make such a written request for reaffirmation only once for each Acquisition Proposal and once for each amendment or modification of such Acquisition Proposal), fail to reaffirm (without qualification) publicly reaffirm the Company Recommendation within three the earlier of (3x) five Business Days after Parent so requests in writing if there has been any public disclosure by a third party related to an actual Acquisition Proposal by such third party; provided that the Company will Recommendation be obligated reaffirmed publicly and (y) two Business Days prior to make such reaffirmation only once in response to each such actual Acquisition Proposal made by such third party; and provided, further, that if the Company Stockholders Meeting is scheduled to take place less than three (3) Business Days after such request, the Company will reaffirm the Company Recommendation prior to such meeting), Meeting; or (E) if a tender offer accept, approve, endorse, recommend or exchange offer for shares of capital stock of authorize the Company that constitutes to enter into a written agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.4(d)) concerning an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders (in each of the Companycases set forth in clause (A), provided that a customary “stop(B), look and listen” communication by the Company Board pursuant to Rule 14d-9(f(C), (D) of the Exchange Act shall not be prohibited within ten or (10) Business Days after commencement of such tender offer or exchange offer (any of the foregoingE), an “Adverse Recommendation Change”) ), or (ii) authorize, adopt or approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary, at any time prior to the Company Stockholders Meeting, the Company Board may (I) effect an Adverse Recommendation Change in response to an Intervening Event, if and only if the Company Board has determined in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law and (II) if the Company receives an Acquisition Proposal that the Company Board determines in good faith constitutes a Superior Proposal (after consultation with its financial advisors and outside legal counsel), authorize, adopt, or approve such Superior Proposal and cause or permit the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may only take the actions described in (x) clause (II) if the Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:
(i) the Company has provided prior written notice to Parent of its or the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action, which notice shall specify (x) in the case of a Superior Proposal, the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreements with, and the identity of, the Person making the Acquisition Proposal, or (y) in cases not involving a Superior Proposal, the material circumstances giving rise to the Adverse Recommendation Change;
(ii) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company or the Company Board not to take such actions; provided, that any material change to the terms of such Superior Proposal or to the facts and circumstances relating to such Intervening Event shall require a new notice including the details required by the notice described in clause (i) above and the Company shall be required to comply again with the requirements of this Section 5.02(d)(y) with respect to each such material change; provided, further that with respect to each subsequent written notice related to a material change references to the three (3) Business Day period above shall be deemed to be references to a two (2) Business Day period; and
(iii) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period (or the last day of any applicable extension pursuant to clause (ii) above) and shall have determined in good faith (A) with respect to the actions described in clause (I) after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect the Adverse Recommendation Change and (B) with respect to the actions described in clause (II), after consultation with outside counsel and its financial advisors, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, even if such changes offered in writing by Parent were given effect. The Company shall be required to comply with the obligations under the foregoing clauses (ii) and (iii) with respect to each Superior Proposal it receives or any Intervening Event the Company Board identifies.
Appears in 1 contract
Samples: Arrangement Agreement and Plan of Merger (Primo Water Corp /CN/)
