Board Recommendations. (a) Subject to the terms of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall: (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by such Board (or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of Recommendation”); or (ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3). (b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal. (c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal. (d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement. (e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 2 contracts
Samples: Merger Agreement (August Technology Corp), Merger Agreement (Rudolph Technologies Inc)
Board Recommendations. (a) Subject In connection with the Acquisition and Shareholders' Meeting, the Board of Directors of the Seller shall (i) subject to Section 5.5(b), recommend to the terms holders of the Seller Common Stock to vote in favor of the Acquisition and use its reasonable best efforts to obtain the necessary approvals by the Seller Shareholders of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Company Board (or any committee thereof) nor of Directors of the Parent Board (Seller nor any committee thereofthereof shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyPurchaser, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Acquisition or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the date of the Shareholders' Meeting the Board of Directors of the Seller determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.6 and after taking into consideration advice from outside counsel with respect to its fiduciary duties to the contrary set forth hereinSeller Shareholders under applicable Law, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) advisable for the Board of Directors of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order Seller to comply with its fiduciary duties obligations to the Seller Shareholders under applicable Law Law, the Board of Directors of the Seller may (subject to this and the following sentences) inform Seller Shareholders that it no longer believes that the Acquisition is advisable and no longer recommends approval thereof (iva "Subsequent Determination") and cause the party receiving such Seller to enter into an Acquisition Agreement with respect to a Superior Proposal has provided Proposal, but only at a time that is after the other party five third business day (5or the second business day, in the case of a material amendment to a Superior Proposal) Business Days prior following the Purchaser's receipt of written notice advising the Purchaser that its the Board intends of Directors of the Seller is prepared to effect such Change of Recommendation, specifying accept a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying Proposal, identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of the Seller intends to make a Subsequent Determination. During such three business day period (c) In or two business day period in the event that, during the foregoing five (5) Business Day periodcase of a material amendment), the party hereto that has received Seller shall provide an opportunity for the foregoing notice shall make a counterproposal Purchaser to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Seller to proceed with its recommendation to its shareholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision Subsequent Determination. For purposes of this Agreement.
, a "Superior Proposal" means any proposal (eon its most recently amended or modified terms, if amended or modified) Nothing set forth made by a third party to enter into an Alternative Transaction which the Board of Directors of the Seller determines in this Section 6.3 shall its good faith judgment (ibased on, among other things, the advice of an independent financial advisor) permit either to be more favorable to the Seller Shareholders than the Acquisition from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Seller, after obtaining the advice of such independent financial advisor, the third party hereto is reasonably able to terminate finance the transaction, and any proposed changes to this Agreement (ii) affect any other obligation of that may be proposed by the parties under this Agreement, (iii) limit either party’s obligation Purchaser in response to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may besuch Alternative Transaction).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Board Recommendations. (a) Subject In connection with the Offer, the Merger and the Stockholders’ Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms Company Stockholders to vote in favor of the adoption of the Merger Agreement and use all commercially reasonable efforts to obtain the necessary approvals by the Company Stockholders of this Agreement, the Merger and the other transactions contemplated by this Agreement, (ii) otherwise comply with the legal requirements applicable to such meeting and (iii) subject to Section 6.35.5(b), neither recommend to the holders of the Company Common Stock to tender their shares of Company Common Stock pursuant to the Offer.
(b) Neither the Board (or any committee thereof) nor of Directors of the Parent Board (Company nor any committee thereof) thereof shall:
, except as expressly permitted by this Section 5.5(b), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other party, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Offer, the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend, any Alternative Transaction (any action described in clause (i) above or in this clause (ii) being referred to its shareholders as an “Adverse Recommendation Change”), or stockholders(iii) cause the Company to enter into any letter of intent, as agreement in principle, acquisition agreement or other similar agreement (other than a confidentiality agreement in compliance with the case may beprovisions of Section 5.9(b)) (each, that they accept an “Acquisition Agreement”) related to any transaction involving an Acquisition Proposal or Superior Proposal from a third party (as defined in Section 9.3an “Alternative Transaction”).
(b) . Notwithstanding anything the foregoing, if prior to the contrary set forth hereinAppointment Time, each the Board of Directors of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (faith, after consultation with its receipt of advice from outside legal counsel) , that it is necessary required to take such action in order do so to comply with its fiduciary duties to the Company Stockholders under applicable Law Delaware Law, the Board of Directors of the Company may (subject to this and the following sentences in this Section 5.5(b)) make an Adverse Recommendation Change, but only at a time that is after the third business day following Parent’s receipt of written notice advising Parent that (ivx) the party receiving such Board of Directors of the Company has received a Superior Proposal or an Acquisition Proposal that is reasonably likely to be a Superior Proposal or (y) it is reasonably likely that an Intervening Event has provided the other party five (5) Business Days prior occurred. Such written notice that its Board intends to effect such Change shall specify, in the case of Recommendationa Superior Proposal or Acquisition Proposal, specifying the material terms and conditions of such Superior Proposal or Acquisition Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
(c) In Proposal or Acquisition Proposal or, in the event thatcase of an Intervening Event, during attach information describing such Intervening Event in reasonable detail, and, in each case, state that the foregoing five (5) Business Day Board of Directors of the Company is considering making an Adverse Recommendation Change. During such three business day period, the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Company to proceed with its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under recommendation to the Exchange ActCompany Stockholders without an Adverse Recommendation Change; provided, however, that any action taken or disclosure made pursuant to such rules proposed adjustment shall not in any way limit or modify be at the effect that any action taken or disclosure made pursuant to such rules has under any other provision discretion of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation Parent at the time. For purposes of the parties under this Agreement, (iii1) limit either party’s obligation a “Superior Proposal” means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto enter into an Alternative Transaction that the Board of its obligation to submit to a vote Directors of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at determines in its respective Special Meeting, or good faith judgment (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.after
Appears in 2 contracts
Samples: Merger Agreement (Sprint Nextel Corp), Merger Agreement (iPCS, INC)
Board Recommendations. (a) Subject to the terms of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by such Board (of Directors or any such committee) committee of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “"Change of Recommendation”"); or
(ii) adopt, approve or recommend (to its shareholders that they accept, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3below).
(b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may berespectively, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Shareholders Meeting or the Parent Special Shareholders Meeting, as the case may berespectively, has not occurred, and (iii) the Board of Directors of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with based on the advice of its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law Law, and (iv) the party hereto receiving such Superior Proposal has provided the other party hereto five (5) Business Days business days prior written notice that its Board of Directors intends to effect take such Change of Recommendationaction, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person person or Persons persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day five-day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 7.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 7.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s 's obligation to duly call, give notice of, convene and hold its respective Special Merger Shareholders Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Shareholder Proposal or the Parent Voting Shareholder Proposal, as the case may beappropriate, at its respective Special Merger Shareholders Meeting, or (v) permit either party hereto to submit to for a vote of its respective shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, Merger Shareholders Meeting any Acquisition Proposal other than the Company Parent Voting Proposal or and the Parent Company Voting Proposal, as the case may beapplicable.
Appears in 2 contracts
Samples: Merger Agreement (Nanometrics Inc), Merger Agreement (Nanometrics Inc)
Board Recommendations. (a) Subject In connection with the purchase and sale of the Assets and the Shareholders' Meeting, the Board of Directors of Seller and the special committee of independent directors formed in connection with the transactions contemplated by this Agreement shall (i) subject to the terms Section 7.5(b), recommend to Seller's shareholders to vote in favor of this Section 6.3, neither Agreement and the Company purchase and sale of the Assets and use commercially reasonable efforts to obtain the necessary approvals by Seller's shareholders of this Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board (or any committee thereof) nor the Parent Board (of Directors of Seller nor any committee thereof) thereof shall:
, except as expressly permitted by this Section 7.5(b), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyBuyer, the approval or recommendation by of such Board (of Directors or any such committee) committee of the purchase and sale of the Assets by Buyer or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "ALTERNATIVE TRANSACTION"), or (iii) cause Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "ACQUISITION AGREEMENT") related to any Alternative Transaction. Notwithstanding the foregoing, the Board of Directors of Seller determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 7.6 and after taking into consideration advice from outside counsel with respect to the contrary set forth hereinits fiduciary duties to Seller's shareholders under applicable Law, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) required for the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order Directors of Seller to comply with its fiduciary duties obligations to Seller's shareholders under applicable Law Law, the Board of Directors of Seller may (subject to this and the following sentences) inform Seller's shareholders that it no longer believes that the sale of the Assets is advisable and no longer recommends approval of this Agreement (iva "SUBSEQUENT DETERMINATION") and may enter into an Acquisition Agreement with respect to a Superior Proposal, but only at a time that is after the party receiving such third business day (or the second business day, in the case of a material amendment to a Superior Proposal has provided the other party five (5Proposal) Business Days prior following Buyer's receipt of written notice advising Buyer that its the Board intends of Directors of Seller is prepared to effect such Change of Recommendation, specifying accept a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
(c) In Proposal and state that the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall Board of Directors of Seller intends to make a counterproposal Subsequent Determination. During such three business day period (or two business day period in the case of a material amendment), Seller shall provide an opportunity for Buyer to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable Seller to proceed with its recommendation to its shareholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision Subsequent Determination. For purposes of this Agreement.
, a "SUPERIOR PROPOSAL" means any proposal (eor its most recently amended or modified terms, if amended or modified) Nothing set forth made by a third party to enter into an Alternative Transaction which the Board of Directors of Seller determines in its good faith judgment (based on, among other things, the advice of an independent financial advisor) to be, from a financial point of view, more favorable to Seller's shareholders than the transactions contemplated by this Section 6.3 shall Agreement (taking into account (i) permit either whether, in the good faith judgment of the Board of Directors of Seller, after obtaining the advice of such independent financial advisor, the third party hereto is reasonably able to terminate this Agreement finance the transaction, and (ii) affect any other obligation of the parties under changes to this Agreement, (iii) limit either party’s obligation Agreement that may be proposed by Buyer in response to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may besuch Alternative Transaction).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Pyramid Breweries Inc), Asset Purchase Agreement (Pyramid Breweries Inc)
Board Recommendations. (a) Subject to the terms of this Section 6.36.03(b) and Section 6.03(c), (i)(A) the Trulia Board shall cause the Trulia Board Recommendation to be included in the Joint Proxy Statement and (B) neither the Company Trulia Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw thereof shall withhold, withdraw, amend or modify, or propose publicly to withdraw or modify, modify in a manner adverse to the other partyZillow, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Zillow, the approval or recommendation by such Trulia Board Recommendation (or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of RecommendationTrulia Board Recommendation Change”); or
) and (ii) adoptthe Zillow Board shall cause the Zillow Board Recommendation to be included in the Joint Proxy Statement and (B) neither the Zillow Board nor any committee thereof shall withhold, approve withdraw, amend or recommend modify in a manner adverse to Trulia, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Trulia, the Zillow Board Recommendation (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3a “Zillow Board Recommendation Change”).
(b) Notwithstanding anything Section 6.03(a), but subject to the contrary set forth hereinprovisions of this Section 6.03(b), each (x) the Trulia Board may, at any time prior to receipt of the Company Board and the Parent Board may Trulia Stockholder Approval, effect a Trulia Board Recommendation Change, and (y) the Zillow Board may, at any time prior to receipt of the Zillow Shareholder Approval, effect a Zillow Board Recommendation Change of Recommendation(the party whose Board is making such Recommendation Change, provided that the “Subject Party”), if:
(i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Subject Party has received a bona fide, written Competing Transaction Proposal that (A) did not result from a breach of Section 6.05 and (B) constitutes a Superior Proposal reasonably Proposal;
(ii) the Board of the Subject Party determines in good faith (after consultation with its outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by the non-Subject Party pursuant to clause (iv) that it is necessary below), that, in light of such Superior Proposal, the failure of the Board of the Subject Party to take such action in order to comply make a Trulia Board Recommendation Change or Zillow Board Recommendation Change, as applicable, would be inconsistent with its fiduciary duties under applicable Law and Law;
(iviii) prior to effecting such Trulia Board Recommendation Change or Zillow Board Recommendation Change, as the party receiving case may be, the applicable Board shall have given the non-Subject Party at least five calendar days’ notice thereof (which notice shall include the most current version of such Superior Proposal has provided definitive agreement and, to the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendationextent not included therein, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons identity of the person making such Superior Proposal) and the opportunity to meet with the Subject Party, its financial advisor and its outside legal counsel during such five day period, all with the purpose and intent of enabling Zillow and Trulia to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby (including the Mergers) may be effected; and
(iv) the non-Subject Party shall not have made, within five calendar days after receipt of the written notice required pursuant to clause (iii) above, a binding irrevocable counter-offer or proposal capable of being accepted by the Subject Party that the Subject Party Board determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to its stockholders or shareholders, as applicable, as such Superior Proposal (it being understood that any change to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice pursuant to clause (iii) above and a new three calendar day period pursuant to this clause (iv)) (it being further understood that there may be multiple extensions of such three calendar day period).
(c) In the event thatNotwithstanding Section 6.03(a), during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal but subject to the party hereto that is proposing provisions of this Section 6.03(c), in response to an Intervening Event (x) the Trulia Board may, at any time prior to receipt of the Trulia Stockholder Approval, effect a Change Trulia Board Recommendation Change, and (y) the Zillow Board may, at any time prior to receipt of Recommendationthe Zillow Shareholder Approval, effect a Zillow Board Recommendation Change, if:
(i) the Intervening Event does not involve the receipt of an offer, proposal or inquiry from any third party that is proposing relating to take such action a transaction of the nature described in the definition of “Competing Transaction Proposal” (which, for purposes of this clause (i), shall consider and cause its financial and legal advisors be read without reference to negotiate on its behalf the percentage thresholds set forth in the definition thereof);
(ii) the applicable Board determines in good faith (after consultation with respect outside legal counsel and after considering in good faith any counter-offer or proposal made by the other party pursuant to clause (iv) below) that, in light of such Intervening Event, the failure of such Board to make a Trulia Board Recommendation Change or Zillow Board Recommendation Change, as applicable, would be inconsistent with its fiduciary duties under applicable Law;
(iii) prior to effecting such Trulia Board Recommendation Change or Zillow Board Recommendation Change, as the case may be, the applicable Board shall have given the other party at least five business days’ prior written notice thereof, which notice shall specify in reasonable detail the facts underlying such Board’s determination that an Intervening Event has occurred and the rationale and basis for such Trulia Board Recommendation Change or Zillow Board Recommendation Change, as applicable, and the opportunity to meet with such Board and its outside legal counsel during such five day period, all with the purpose and intent of enabling Zillow and Trulia to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby (including the Mergers) may be effected; and
(iv) following the expiration of the five business day period after receipt of the written notice required pursuant to clause (iii) above, the applicable Board determines in good faith, after consultation with outside legal counsel, and after giving good faith consideration to any counter-offer or proposal from the other party that, in light of such counterproposalIntervening Event, the failure of such Board to make a Trulia Board Recommendation Change or Zillow Board Recommendation Change, as applicable, would be inconsistent with its fiduciary duties under applicable Law.
(d) Each of (i) the Trulia Board, with respect to any Trulia Board Recommendation Change, and (ii) the Zillow Board, with respect to any Zillow Board Recommendation Change, shall ensure that any such recommendation change: (A) does not change or otherwise affect the approval of this Agreement or any other approval related thereto by Trulia Board or the Zillow Board, as applicable; and (B) does not have the effect of causing any Takeover Law to be applicable to this Agreement, the Voting Agreements, the Mergers or any of the other transactions contemplated hereby or thereby. The parties shall keep confidential any proposals made by the other party to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any SEC Report or as otherwise required under applicable Law.
(e) Nothing set forth in this Section 6.3 Agreement shall prohibit either party hereto the Trulia Board or the Zillow Board from taking and disclosing to its stockholders or shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure statement(s) made by such Board pursuant to such rules Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act shall not in any way limit or modify be subject to the effect that any action taken or disclosure made pursuant to such rules has under any other provision terms and conditions of this Agreement.
; and provided further, that any such statements (e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation than a “stop, look and listen communication” of the parties type contemplated by Rule 14d-9(f) under this Agreementthe Exchange Act, (iiiand within the time period contemplated by Rule 14d-9(f)(3)) limit either party’s obligation shall be deemed to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to be a vote of its shareholders Trulia Board Recommendation Change or stockholdersZillow Board Recommendation Change, as applicable, unless the case may be, the Company Voting Proposal Trulia Board or the Parent Voting ProposalZillow Board, as applicable, expressly publicly reaffirms the case may be, at its respective Special Meeting, Trulia Board Recommendation or (v) permit either party hereto to submit to a vote of its shareholders or stockholdersthe Zillow Board Recommendation Change, as the case may beapplicable, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may bein connection with such statement.
Appears in 2 contracts
Samples: Merger Agreement (Zillow Inc), Merger Agreement (Trulia, Inc.)
Board Recommendations. a. Neither (ai) Subject to the terms Board of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (Directors of Aspen nor any committee thereof) shall:
thereof shall directly or indirectly (iA) withdraw or modifyamend in a manner adverse to Buyer, or resolve to withdraw or amend or publicly propose to withdraw or amend in a manner adverse to Buyer, the approval, recommendation or declaration of advisability by the Board of Directors of Aspen or any such committee thereof of this Agreement or the Transaction or (B) recommend, adopt or approve (or resolve to recommend, adopt or approve), or propose publicly to withdraw recommend, adopt or modifyapprove, in a manner adverse to the other party, the approval or recommendation by such Board (or any such committee) of this Agreement or the transactions contemplated hereby Acquisition Proposal (any such withdrawal, amendment, modification action described in clauses (A) or proposal, a (B) being referred to as an “Change of RecommendationAdverse Recommendation Change”); or
) nor (ii) adopt, approve shall any Seller execute or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept enter into any Alternative Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Agreement.
(b) b. Notwithstanding anything the foregoing, at any time prior to obtaining the contrary set forth hereinAspen Shareholders’ Approval and subject to Aspen’s compliance at all times with the provisions of Section 8.2, each this Section 8.3 and Sections 8.6 and 8.7, the Board of the Company Board and the Parent Board Directors of Aspen may effect a make an Adverse Recommendation Change of Recommendation, provided that if (i) the Company or Parent, as the case may be, has received an Aspen receives a bona fide written Acquisition Proposal that it has deemed to be from a Superior Proposal third party (and such Superior Acquisition Proposal has was not been withdrawn at the time such action is takeninitiated, solicited or knowingly encouraged or facilitated in violation of this Agreement), (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably Directors of Aspen determines in good faith (faith, after consultation with its outside legal counsel) counsel and receipt of a written opinion from an independent investment bank that it such Acquisition Proposal constitutes a “Superior Proposal” hereunder, a copy of which shall immediately be provided to Buyer, that the Acquisition Proposal constitutes a Superior Offer and that the Adverse Recommendation Change is necessary to take such action in order for the Board of Directors of Aspen to comply with its fiduciary duties under applicable Law law and (iviii) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Aspen provides written notice to Buyer (a “Notice of Change”) advising Buyer that its Board intends to effect it is contemplating making such an Adverse Recommendation Change of Recommendation, and specifying the material terms facts and conditions information constituting the basis for such contemplated determination, together with a copy of the written opinion of the independent investment bank; provided, however, that (x) the Board of Directors of Aspen may not make such Superior Proposal an Adverse Recommendation Change until the fourth business day after receipt by Buyer of the Notice of Change and (and providing a written copy thereofy) and identifying the Person or Persons making during such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day four business day period, at the party hereto that has received the foregoing notice request of Buyer, Aspen shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing any changes or modifications to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation which would allow the Board of the parties under this Agreement, (iii) limit either party’s obligation Directors of Aspen not to duly call, give notice of, convene and hold make such Adverse Recommendation Change consistent with its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may befiduciary duties.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Venoco, Inc.), Purchase and Sale Agreement (Aspen Exploration Corp)
Board Recommendations. (a) Subject In connection with the Initial Offer, the Subsequent Offer, the Merger and Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms holders of the Company Common Stock to tender their shares of Company Common Stock in the Initial Offer and any Subsequent Offer and to vote in favor of the Merger and use its reasonable best efforts to obtain the necessary approvals by the Company Stockholders of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Initial Offer, the Subsequent Offer, the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the termination of the Initial Offer, the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.9 and after taking into consideration the opinion of outside counsel with respect to its fiduciary duties to Company Stockholders under applicable Law, that such action is required for the contrary set forth herein, each Board of Directors of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties obligations to the Company Stockholders under applicable Law Law, the Board of Directors of the Company may (subject to this and the following sentences) inform Company Stockholders that it no longer believes that the Initial Offer, the Subsequent Offer and the Merger are advisable and no longer recommends approval (iva "Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, but only at a time that is after the party receiving such third business day (or the second business day, in the case of a material amendment to a Superior Proposal has provided the other party five (5Proposal) Business Days prior following Parent's receipt of written notice advising Parent that its the Board intends of Directors of the Company is prepared to effect such Change of Recommendation, specifying accept a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of the Company intends to make a Subsequent Determination. During such three business day period (c) In or two business day period in the event that, during the foregoing five (5) Business Day periodcase of a material amendment), the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Company to proceed with its recommendation to its shareholders stockholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision Subsequent Determination. For purposes of this Agreement.
, a "Superior Proposal" means any proposal (eon its most recently amended or modified terms, if amended or modified) Nothing set forth made by a third party to enter into an Alternative Transaction which the Board of Directors of the Company determines in this Section 6.3 shall its good faith judgment (ibased on, among other things, the written advice of an independent financial advisor) permit either to be more favorable to the Company Stockholders than the Initial Offer, the Subsequent Offer and the Merger from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such independent financial advisor, the third party hereto is reasonably able to terminate finance the transaction, and any proposed changes to this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation that may be proposed by Parent in response to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may besuch Alternative Transaction).
Appears in 2 contracts
Samples: Merger Agreement (Harland John H Co), Merger Agreement (Cfi Proservices Inc)
Board Recommendations. (ai) Subject Except to the terms extent expressly permitted by Section 5.3, (A) the Board of this Section 6.3Directors of ANI shall recommend that ANI's stockholders vote in favor of the approval of the Merger and the issuance of ANI Common Stock in the Merger at the ANI Stockholders' Meeting, (B) the Prospectus/Proxy Statement shall include a statement to the effect that the Board of Directors of ANI has recommended that ANI's stockholders vote in favor of the approval of the Merger and the issuance of ANI Common Stock in the Merger at the ANI Stockholders' Meeting and (C) neither the Company Board (or any committee thereof) nor the Parent Board (of Directors of ANI nor any committee thereof) shall:
(i) withdraw thereof shall withdraw, amend or modify, or propose publicly or resolve to withdraw withdraw, amend or modify, modify in a manner adverse to the other partyOccam, the recommendation of the Board of Directors of ANI that ANI's stockholders vote in favor of the approval or recommendation by such Board (or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change Merger and the issuance of Recommendation”); orANI Common Stock in the Merger.
(ii) adopt(A) The Board of Directors of Occam shall recommend that Occam's shareholders vote in favor of the approval and adoption of this Agreement and the approval of the Merger at the Occam Shareholders' Meeting, approve or recommend (or propose publicly to adopt, approve or recommendB) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3).
(b) Notwithstanding anything Prospectus/Proxy Statement shall include a statement to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of Directors of Occam has recommended that Occam's shareholders vote in favor of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law approval and adoption of this Agreement and the approval of the Merger at the Occam Shareholders' Meeting and (ivC) neither the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends of Directors of Occam nor any committee thereof shall withdraw, amend or modify, or propose or resolve to effect such Change of Recommendationwithdraw, specifying the material terms and conditions of such Superior Proposal (and providing amend or modify in a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day periodmanner adverse to ANI, the party hereto recommendation of the Board of Directors of Occam that has received Occam's shareholders vote in favor of the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider approval and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision adoption of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation and the approval of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may beMerger.
Appears in 2 contracts
Samples: Merger Agreement (Occam Networks Inc), Merger Agreement (Accelerated Networks Inc)
Board Recommendations. (a) Subject to the terms of Section 6.2(b), (i) the Agere Board shall recommend that the Agere Stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law (the “Agere Board Recommendation”), and (ii) the LSI Board shall recommend that the LSI Stockholders approve the issuance of shares of LSI Common Stock in the Merger in accordance with the applicable rules of the NYSE (the “LSI Board Recommendation”).
(b) Subject to the terms of this Section 6.36.2(b), (x) neither the Company Agere Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall withhold, withdraw, amend or modify in a manner adverse to LSI, or publicly propose to withhold, withdraw, amend, modify, qualify or condition in a manner adverse to LSI, the Agere Board Recommendation (an “Agere Board Recommendation Change”), and (y) shallneither the LSI Board nor any committee thereof shall withhold, withdraw, amend, modify, qualify or condition in a manner adverse to Agere, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Agere, the LSI Board Recommendation (a “LSI Board Recommendation Change”); provided, however, that notwithstanding the foregoing, at any time prior to the receipt of the Requisite Agere Stockholder Approval in the case of Agere, or receipt of the Requisite LSI Stockholder Approval in the case of LSI, the Agere Board may effect an Agere Board Recommendation Change and the LSI Board may effect an LSI Board Recommendation Change, in either case if and only if either:
(i) withdraw (A) the party proposing to take such action has received an Acquisition Proposal relating to it that constitutes a Superior Proposal other than as a result of a breach or modifyviolation of the terms of Section 6.1, (B) neither the party proposing to take such action nor any of its representatives shall have breached or propose publicly violated the provisions of Section 6.1 in connection with such Acquisition Proposal, (C) prior to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by effecting such Agere Board (or any such committee) of this Agreement Recommendation Change or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholdersLSI Board Recommendation Change, as the case may be, that they accept any Acquisition Proposal or Superior Proposal the party proposing to take such action shall have given the other party hereto at least five (as defined 5) days notice thereof and the opportunity to meet and discuss in Section 9.3).
(b) Notwithstanding anything to the contrary set forth herein, each good faith a modification of the Company Board terms and conditions of this Agreement so that the Parent Board transactions contemplated hereby may effect a Change of Recommendation, provided that be effected and (iD) the Company other party hereto shall not have made, within five (5) days after receipt of such party’s written notice of its intention to effect an Agere Board Recommendation Change or Parentan LSI Board Recommendation Change, as the case may be, has received an Acquisition Proposal a counter-offer or proposal that it has deemed the board of directors of the party proposing to be take such action reasonably determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to its stockholders as such Superior Proposal and (E) after such Superior Proposal has not been withdrawn at discussions, the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board board of directors of the party receiving proposing to take such Superior Proposal action reasonably determines in good faith (after consultation with its outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by the other party hereto pursuant to the immediately preceding clause (D)) that it is necessary the failure to take effect such action in order Agere Board Recommendation Change or an LSI Board Recommendation Change, as the case may be, would reasonably be expected to comply with be a breach of its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.Delaware Law; or
(cii) In (A) prior to effecting the event thatAgere Board Recommendation Change or the LSI Board Recommendation Change, during as the foregoing five (5) Business Day periodcase may be, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider have given the other party hereto at least five (5) days notice thereof and cause its financial the opportunity to meet and legal advisors to negotiate on its behalf discuss in good faith the purported basis for the proposed the Agere Board Recommendation Change or the LSI Board Recommendation Change, as the case may be, the other party’s reaction thereto and any possible modification of the terms and conditions of this Agreement in response thereto so that the transactions contemplated hereby may be effected, and (B) after such discussions, the board of directors of the party proposing to take such action reasonably determines in good faith (after consultation with outside legal counsel) that the failure to effect such Agere Board Recommendation Change or LSI Board Recommendation Change, as the case may be, would reasonably be expected to be a breach of its fiduciary duties under Delaware Law. Each of Agere and LSI acknowledge and hereby agree that any Agere Board Recommendation Change or LSI Board Recommendation Change effected (or proposed to be effected) in response to or in connection with a Superior Proposal may be made pursuant to the immediately preceding clause (i) only, and may not be made pursuant to the immediately preceding clause (ii) and any Agere Board Recommendation Change or LSI Board Recommendation Change, as the case may be, may only be made pursuant to this Section 6.2(b).
(c) Nothing in this Agreement shall prohibit the Agere Board or the LSI Board from taking and disclosing to the Agere Stockholders or the LSI Stockholders, respectively, a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, or with fiduciary duties under applicable law; provided, however, that neither Agere (with respect to statements made by the terms of such counterproposalAgere Board) nor LSI (with respect to statements made by the LSI Board) pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14(d)-9 under the Exchange Act or as required by fiduciary duties shall make disclosures that would amount to an Agere Board Recommendation Change or an LSI Board Recommendation Change, other than pursuant to Section 6.2(b).
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 6.2 shall (i) permit either party hereto to terminate this Agreement Agreement, (ii) affect any other obligation of the parties hereto under this Agreement, (iii) limit the obligation of either party’s obligation party hereto to duly call, give notice of, convene and hold its respective Special Merger Stockholder Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as stockholders the case may be, the Company Voting Agere Stockholder Proposal or the Parent Voting LSI Stockholder Proposal, as the case may beapplicable, at its respective Special Merger Stockholder Meeting, or (v) permit either party hereto to submit to for a vote of its shareholders or stockholders, as the case may be, respective stockholders at or prior to its respective Special Meeting, Merger Stockholder Meeting any Acquisition Proposal other than the Company Agere Voting Proposal or and the Parent LSI Voting Proposal, as the case may beapplicable.
Appears in 1 contract
Samples: Merger Agreement (Agere Systems Inc)
Board Recommendations. (a) Subject In connection with the Initial Offer, the Subsequent Offer, the Merger and Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms holders of the Company Common Stock to tender their shares of Company Common Stock in the Initial Offer and Subsequent Offer and vote in favor of the Merger and use its reasonable best efforts to obtain the necessary approvals by the Company Stockholders of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Initial Offer, the Subsequent Offer, the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the approval of this Agreement by the Company Stockholders, and in any event no later than the original termination date of the Initial Offer, the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.9 and after taking into consideration advice from outside counsel with respect to its fiduciary duties to Company Stockholders under applicable Delaware law, the contrary set forth herein, each Board of Directors of the Company Board may (subject to this and the Parent Board may effect following sentences) inform Company Stockholders that it no longer believes that the Merger is advisable and no longer recommends approval (a Change of Recommendation"Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, provided but only at a time that is after the fifth business day (i) or the Company or Parentsecond business day, as in the case may be, has received an Acquisition Proposal that it has deemed of a material amendment to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (iiProposal) the Company Special Meeting or the following Parent's receipt of written notice advising Parent Special Meeting, as the case may be, has not occurred, (iii) that the Board of Directors of the party receiving such Company is prepared to accept a Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Proposal. Such written notice that its Board intends to effect such Change of Recommendation, specifying shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of the Company intends to make a Subsequent Determination. During such five business day period (c) In or two business day period in the event that, during the foregoing five (5) Business Day periodcase of a material amendment), the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. For purposes of this Agreement, a "Superior Proposal" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction which the Board of Directors of the Company determines in its good faith judgment (based on, among other things, the advice of an independent financial advisor) to be more favorable to the Company Stockholders than the Merger and the Initial Offer and Subsequent Offer, from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such counterproposal.
(d) Nothing set forth independent financial advisor, the third party is reasonably able to finance the transaction, and any proposed changes to this Agreement that may be proposed by Parent in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant response to such rules Alternative Transaction), except that for purposes of the definition of "Superior Proposal," an "Alternative Transaction" shall not mean an Acquisition Proposal by a third party, provided that the reference to "25%" in any way limit or modify the effect that any action taken or disclosure made pursuant definition of "Acquisition Proposal" shall be deemed to such rules has under be "51%." Notwithstanding any other provision of this Agreement.
(e) Nothing set forth , the Company shall in this Section 6.3 shall no way limit or prevent (i) permit either party hereto to terminate this Agreement Company Stockholders from tendering shares of Company Common Stock in the Initial Offer or Subsequent Offer or (ii) affect any other obligation Buyer from purchasing such shares of Company Common Stock whether or not the Board of Directors of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to Company makes a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may beSubsequent Determination.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger and the Shareholder Approvals, the Board of Trust Managers of ACT and the Board of Directors of ICH shall (i) subject to Section 6.7(b) hereof, recommend to the terms holders of ACT Common Shares and ICH Stock, respectively, to vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approvals by the shareholders of ACT and the stockholders of ICH, as the case may be, of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such approval.
(b) Neither the Company Board (or any committee thereof) of Trust Managers of ACT nor the Parent Board (of Directors of ICH nor any committee thereof) thereof shall:
, except as expressly permitted by this Section 6.7 (b), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyparty to this Agreement, the approval or recommendation by of their respective Boards or such Board (committees of the Merger or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend, any transaction involving an Acquisition Proposal (as defined below) from a third party (an "Alternative Transaction"), or (iii) cause ACT or ICH, as the case may be, to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if the Board of Trust Managers of ACT or the Board of Directors of ICH, as the case may be, determines in good faith, after such Board has received a Superior Proposal (as defined below), in compliance with Section 6.8, and after receiving advice from outside counsel as to its fiduciary duties to its respective shareholders or stockholders, as the case may be, under applicable law, such Board may (subject to this Section 6.7(b)) inform its shareholders or stockholders, as the case may be, that it no longer believes that the Merger is advisable and no longer recommends approval of the Merger (a "Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, but only at a time that is after the third business day following receipt by the other party to this Agreement of written notice advising such other party that such Board has received a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal, identify the person making such Superior Proposal and state that such Board intends to make a Subsequent Determination. During such three-business day period, the party intending to make such Subsequent Determination shall provide an opportunity for the other party hereto to propose such adjustments to the terms and conditions of this Agreement as would enable the party intending to make such Subsequent Determination to proceed with its recommendation to its shareholders or stockholders, as the case may be, without a Subsequent Determination; provided, however, that they accept the acceptance of any such proposed adjustment shall be at the sole discretion of the Board that has received a Superior Proposal, exercised in good faith, and this Agreement shall be amended to reflect any such accepted adjustments. ACT and ICH hereby acknowledge and agree that the other party hereto may enter into an Acquisition Proposal or Agreement with respect to a Superior Proposal (as defined in accordance with this Section 9.36.7, whether or not this Agreement is terminated, and that, in the event that either ACT or ICH enters into an Acquisition Agreement with respect to a Superior Proposal in accordance with this Section 6.7(b).
(b) Notwithstanding anything , neither the other party hereto nor the parties to such Acquisition Agreement may propose or enter into any adjustments to the contrary set forth hereinterms and conditions of this Agreement or such Acquisition Agreement, each of respectively. Notwithstanding the Company Board foregoing, unless this Agreement is earlier terminated in accordance with its terms, this Agreement and the Parent Merger shall be submitted to the shareholders of ACT and the stockholders of ICH whether or not the their respective Boards have made a Subsequent Determination. For purposes of this Agreement, a "Superior Proposal" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction that the Board may effect a Change of Recommendation, provided that (i) Trust Managers of ACT or the Company or ParentBoard of Directors of ICH, as the case may be, has received determines in its good faith judgment (based on, among other things, the written advice of an Acquisition Proposal that it has deemed independent financial advisor) to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing more favorable to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, than the Company Voting Proposal or Merger, taking into account all relevant factors (including whether, in the Parent Voting Proposalgood faith judgment of such Board, as after obtaining the case advice of such independent financial advisor, the third party is reasonably able to finance the transaction, and any proposed changes to this Agreement that may be, at its respective Special Meeting, or (v) permit either be proposed by the other party hereto in response to submit such Alternative Transaction). Nothing contained in this Section 6.7 or any other provision hereof shall prohibit either ACT or ICH or their respective Boards from (x) taking and disclosing to a vote of its their shareholders or stockholders, as the case may be, at pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act a position with respect to a tender or prior exchange offer by a third party, which is consistent with its obligations hereunder, or (y) making such disclosure to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal their shareholders or the Parent Voting Proposalstockholders, as the case may be, as, in the good faith judgment of the applicable Board after receiving advice from outside counsel, is consistent with its obligations hereunder and is required by applicable law; provided that ACT and ICH may not, except as provided by this Section 6.7, withdraw, qualify or modify, in a manner adverse to the other party hereto, the approval or recommendation of its board of trust managers or board of directors, respectively, of the Merger or this Agreement.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger, the Board of Directors of Ultravisual shall recommend to the terms Ultravisual Stockholders that they approve and adopt the Merger and shall use all commercially reasonable efforts to obtain the necessary approvals by the Ultravisual Stockholders of this Section 6.3Agreement.
(b) The Board of Directors of Ultravisual shall not, neither the Company Board (or any committee thereofexcept as expressly permitted by this SECTION 9.4(b) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw or modify, modify in a manner adverse to the other partyEmageon, the approval or recommendation by such of the Board (of Directors of the Merger or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "ALTERNATIVE TRANSACTION"), or (iii) cause Ultravisual to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "ACQUISITION AGREEMENT") related to any Alternative Transaction. Notwithstanding the foregoing, if the Board of Directors of Ultravisual determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in Section 9.3).
(b) Notwithstanding anything compliance with SECTION 9.5 and after taking into consideration advice from outside counsel with respect to the contrary set forth hereinits fiduciary duties to Ultravisual Stockholders under applicable Delaware law, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) required for the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order Directors of Ultravisual to comply with its fiduciary duties obligations to Ultravisual Stockholders under applicable Law law, the Board of Directors of Ultravisual may (subject to this and the following sentences) inform the Ultravisual Stockholders and publicly announce that it no longer believes that the Merger is advisable and no longer recommends approval (iva "SUBSEQUENT DETERMINATION") the party receiving and enter into an Acquisition Agreement with respect to a Superior Proposal and approve or recommend such Superior Proposal has provided Proposal, but only at a time that is after the other party five second business day (5or the first business day in the case of a material amendment to a Superior Proposal) Business Days prior following Emageon's receipt of written notice advising Emageon that its the Board intends of Directors of Ultravisual is prepared to effect such Change of Recommendation, specifying accept a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of Ultravisual intends to make a Subsequent Determination. During such two (c2) In the event that, during the foregoing five (5) Business Day business day period, the party hereto that has received the foregoing notice Ultravisual shall make a counterproposal provide an opportunity for Emageon to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Board of Directors to proceed with its recommendation to its shareholders stockholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision Subsequent Determination. For purposes of this Agreement.
, a "SUPERIOR PROPOSAL" means any proposal (eor its most recently amended or modified terms, if amended or modified) Nothing set forth made by a third party to enter into an Alternative Transaction which the Board of Directors of Ultravisual determines in this Section 6.3 shall its good faith judgment to be more favorable to Ultravisual Stockholders than the Merger from a financial point of view taking into account all relevant factors (i) permit either including whether, in the good faith judgment of the Board of Directors of Ultravisual, the third party hereto is reasonably able to terminate finance the transaction, and any proposed changes to this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation that may be proposed by Emageon in response to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or such Alternative Transaction prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may bedate of such determination).
Appears in 1 contract
Samples: Merger Agreement (Emageon Inc)
Board Recommendations. (a) Subject to the terms of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party6.2(b), the approval or recommendation by such Thermage Board shall recommend that the Thermage Stockholders approve the issuance of shares of Thermage Common Stock in the First Merger in accordance with the applicable rules of the Nasdaq (or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of Thermage Board Recommendation”); or
. Subject to the terms of Section 6.2(c), the Reliant Board shall recommend that the Reliant Stockholders adopt this Agreement and approve the principal terms of the First Merger (ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3“Reliant Board Recommendation”).
(b) Notwithstanding anything Subject to the contrary set forth hereinterms of this Section 6.2(b), each neither the Thermage Board nor any committee thereof shall withhold, withdraw, amend, modify, qualify or condition in a manner adverse to Reliant, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Reliant, the Thermage Board Recommendation (a “Thermage Board Recommendation Change”); provided, however, that notwithstanding the foregoing, at any time prior to the receipt of the Company Board and Requisite Thermage Stockholder Approval, the Parent Thermage Board may effect a Change of RecommendationThermage Board Recommendation Change, provided that if and only if (iA) the Company or Parent, as the case may be, Thermage has received an Acquisition Proposal relating to it that it has deemed constitutes a Superior Proposal, (B) prior to be a effecting such Thermage Board Recommendation Change, Thermage shall have given Reliant at least five (5) Business Days notice thereof, which notice shall include the most current version of such definitive agreement and the identity of the Person making such Superior Proposal and the opportunity to meet to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (C) Reliant shall not have made, within five (5) Business Days after receipt of Thermage’s written notice of its intention to effect a Thermage Board Recommendation Change, a counter-offer or proposal that the Thermage Board reasonably determines in good faith, after consultation with its financial advisor and outside legal counsel, is at least as favorable to its stockholders as such Superior Proposal has not been withdrawn at and (D) after such discussions, the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Thermage Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Reliant pursuant to the immediately preceding clause) that it is necessary the failure to take effect such action Thermage Board Recommendation Change would be reasonably likely to result in order a breach of its fiduciary duties under Delaware Law.
(c) Nothing in this Agreement shall prohibit the Thermage Board from (i) taking and disclosing to comply the Thermage Stockholders, respectively, a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, or (ii) disclosing information required by its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposallaw.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 6.2 shall (i) permit either party hereto to terminate this Agreement Agreement, (ii) affect any other obligation of the parties Thermage or Reliant under this Agreement, (iii) limit either party’s the obligation of Thermage to duly call, give notice of, convene and hold its respective Special Meetingthe Thermage Stockholder Meeting or limit the obligation of Reliant to either duly call, give notice of, convene and hold a stockholder meeting or solicit written consents to obtain the Requisite Reliant Stockholder Approval to adopt this Agreement and approve the principal terms of the First Merger (the “Reliant Stockholder Proposal”), (iv) relieve either party hereto Thermage of its obligation to submit to a vote of its shareholders or stockholders, as stockholders the case may be, the Company Thermage Voting Proposal at the Thermage Stockholder Meeting or the Parent Voting Proposal, as the case may be, at relieve Reliant of its respective Special Meeting, or (v) permit either party hereto obligation to submit to a vote of its shareholders stockholders the Reliant Stockholder Proposal or stockholders, as the case may be, (v) permit Thermage to submit for a vote of its stockholders at or prior to its respective Special Meeting, the Thermage Stockholder Meeting any Acquisition Proposal other than the Company Thermage Voting Proposal or permit Reliant to submit for a vote of its stockholders any Acquisition Proposal other than the Parent Voting Reliant Stockholder Proposal, as the case may be.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Thermage Inc)
Board Recommendations. (a) Subject to Neither the terms Board of this Section 6.3, neither Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
thereof shall (i) withdraw or modifywithdraw, or propose publicly to withdraw or modifywithdraw, in a manner adverse to the other party, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adoptsubject to Section 6.5(b), approve or recommend (modify, or propose publicly to adoptmodify in a manner adverse to the other party, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (iii) approve or recommend) , or propose publicly to its shareholders approve or stockholdersrecommend, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3).
(b) Notwithstanding anything with respect to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an or (iv) approve or recommend or propose to approve or recommend, or execute or enter into any Acquisition Proposal Agreement related to any Acquisition Proposal. Notwithstanding the foregoing, if, prior to the date that it has deemed is the earlier of the 60th day following the date of execution of this Agreement and the date of the Stockholders' Meetings, in response to be a Superior Proposal and such Superior Proposal has that did not been withdrawn at the time such action is takenresult from a breach of Section 6.9, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of Directors of the party receiving such Superior Proposal Company, in exercise of its fiduciary duties, reasonably determines in good faith (after consultation with its faith, based upon the written advice of independent outside legal counsel) , that it its Board of Directors is necessary required to take such action in order do so to comply with its fiduciary duties to its stockholders under applicable Law and (iv) Law, such Board of Directors may, after providing the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Parent with at least 72 hours advance written notice that of its decision to take such action, modify or propose publicly to modify, in a manner adverse to the Parent, the approval or recommendation of the Merger or this Agreement by such Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior ProposalDirectors.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(db) Nothing set forth contained in this Section 6.3 6.5 or any other provision hereof shall prohibit either party hereto the Parent or the Company or the Board of Directors of the Company or of the Parent from (A) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a third party, which is consistent with its obligations hereunder or (B) making such disclosure to its stockholders as, in the reasonable good faith judgment of such Board of Directors, after receiving advice from independent outside legal counsel, is consistent with its obligations hereunder and is required by applicable law; provided, howeverthat neither the Board of Directors of the Parent or the Board of Directors of the Company may, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in except as provided by this Section 6.3 shall (i) permit either party hereto 6.5 with respect to terminate the Company's Board of Directors, modify, or propose publicly to modify, in a manner adverse to other's company, the approval or recommendations of the Parent's Board of Directors or the Company's Board of Directors of the Merger or this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal approve or the Parent Voting recommend an Acquisition Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto propose publicly to submit to a vote of its shareholders approve or stockholders, as the case may be, at or prior to its respective Special Meeting, any recommend an Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Samples: Merger Agreement (Ivillage Inc)
Board Recommendations. (a) Subject to the terms of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by such Board (of Directors or any such committee) committee of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “"Change of Recommendation”"); or
(ii) adopt, approve or recommend (to its stockholders that they accept, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Proposal.
(b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of RecommendationRecommendation or approve or recommend to its stockholders that they accept, or propose publicly to adopt, approve or recommend, any Superior Proposal, provided that (i) the Company or Parent, as the case may berespectively, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Stockholders Meeting or the Parent Special Stockholders Meeting, as the case may berespectively, has not occurred, and (iii) the Board of Directors of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary the failure to take such action in order would be reasonably likely to comply with be a breach of its fiduciary duties under applicable Law Law, and (iv) the party hereto receiving such Superior Proposal has provided the other party hereto five (5) Business Days business days prior written notice that its Board of Directors intends to effect take such Change of Recommendationaction, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person person or Persons persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of RecommendationRecommendation or approve or recommend to its stockholders that they accept, or propose publicly to adopt, approve or recommend, any Superior Proposal, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act, or from making any other disclosure if the Company Board or the Parent Board, as the case may be, determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably likely to be a breach of its fiduciary duties under applicable Law; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s 's obligation to duly call, give notice of, convene and hold its respective Special Merger Stockholders Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, stockholders the Company Voting Stockholder Proposal or and the Parent Voting Proposal, as the case may be, Stockholder Proposal at its respective Special Merger Stockholders Meeting, or (v) permit either party hereto to submit to for a vote of its shareholders or stockholders, as the case may be, respective stockholders at or prior to its respective Special Meeting, Merger Stockholders Meeting any Acquisition Proposal other than the Company Parent Voting Proposal or and the Parent Company Voting Proposal, as applicable.
(f) For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal that the case may beBoard of Directors of the party receiving it determines in good faith (after (i) consultation with its independent financial advisor of nationally recognized reputation and (ii) taking into account all of the terms and conditions of such proposal and this Agreement, including (A) any counterproposal by the other party to this Agreement, (B) the likelihood that the transactions contemplated by such Acquisition Proposal will close in a timely manner, and (C) the extent to which the financing for the transactions contemplated by such Acquisition Proposal, to the extent required, is committed or is capable of being obtained on the terms proposed) is more favorable to such party's stockholders than the Merger or the counter proposal.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger and Shareholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms Shareholders that they vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approvals by the Company Shareholders of this Section 6.3Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof, shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of the Board of Directors or such Board (committee of the Merger or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if, prior to the approval of this Agreement by the Company Shareholders, the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.9 and after taking into consideration advice from outside counsel with respect to its fiduciary duties to Company Shareholders under applicable Georgia law, that such action is required for the contrary set forth herein, each Board of Directors of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties obligations to the Company Shareholders under applicable Law law, the Board of Directors of the Company may (subject to this and the following sentences) inform Company Shareholders and publicly announce that it no longer believes that the Merger is advisable and no longer recommends approval (iva "Subsequent Determination") the party receiving and enter into an Acquisition Agreement with respect to a Superior Proposal and approve or recommend such Superior Proposal has provided Proposal, but only at a time that is after the other party five third business day (5or the second business day in the case of a material amendment to a Superior Proposal) Business Days prior following Parent's receipt of written notice advising Parent that its the Board intends of Directors of the Company is prepared to effect such Change of Recommendation, specifying accept a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal and state that the Board of Directors of the Company intends to make a Subsequent Determination. During such three (3) business day period, the Company shall provide an opportunity for Parent to propose such adjustments to the terms and conditions of this Agreement as would enable the Board of Directors to proceed with its recommendation to its shareholders without a Subsequent Determination. For purposes of this Agreement, a "Superior Proposal" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction which the Board of Directors of the Company determines in its good faith judgment (after receiving the advice of an independent financial advisor) to be more favorable to the Company Shareholders than the Merger from a financial point of view taking into account all relevant factors (including whether, in the good faith judgment of the Board of Directors of the Company (after receiving the advice of an independent financial advisor), the third party is reasonably able to finance the transaction, and any proposed changes to this Agreement that may be proposed by Parent in response to such Alternative Transaction prior to the date of such determination).
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth contained in this Section 6.3 5.5 or any other provision hereof shall prohibit either party hereto the Company or any member of the Board of Directors of the Company from (i) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange ActAct with respect to a tender or exchange offer by a third party, or (ii) from making any disclosure to the Company Shareholders if, in the good faith judgment of the Board of Directors of the Company, or such member, after consultation with outside counsel, failure so to disclose would be inconsistent with applicable Law; provided, however, that neither the Company, its Board of Directors or any action taken committee of the Board of Directors, shall, except as specifically permitted by Section 5.5(b), withdraw, qualify, or modify, or propose to withdraw, qualify or modify, its position with respect to the Merger or this Agreement or approve or recommend, or propose to approve or recommend an Alternative Transaction. Subject to the first sentence of this Section 5.5(c), the taking and disclosure made pursuant to such rules of a position contemplated by Rule 14e-2(a)(2) and (3) promulgated under the Exchange Act shall not in any way limit constitute a withdrawal, qualification or modify modification of the effect that any action taken Company's position with respect to the Merger or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger and the Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to SECTION 5.5(B), recommend to the terms Company Stockholders to vote in favor of the approval of the Merger Agreement and the Merger and use commercially reasonable efforts to obtain the necessary approvals by the Company Stockholders of this Section 6.3Agreement, neither the Merger and the other transactions contemplated by this Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) thereof shall:
, except as expressly permitted by this SECTION 5.5(B), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other party, modify the approval or recommendation by of such Board (of Directors or any such committee) committee of the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal from a third party (an "ALTERNATIVE TRANSACTION"), or Superior Proposal (as defined iii) cause the Company to enter into any letter of intent, agreement in Section 9.3).
principle, acquisition agreement or other similar agreement (bother than a confidentiality agreement in compliance with the provisions of SECTION 5.9(B) (each, an "ACQUISITION AGREEMENT") related to any Alternative Transaction. Notwithstanding anything the foregoing, if prior to the contrary set forth hereinadoption of this Agreement by the Company Stockholders, each the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal in compliance with SECTION 5.5(B)and after receipt of advice from outside counsel, that it is required to do so to comply with fiduciary duties to the Company Stockholders under applicable Delaware Law, the Board of Directors of the Company may (subject to this and the Parent Board may effect a Change of Recommendation, provided that (ifollowing sentences) inform the Company or Stockholders that it no longer believes that the Merger is advisable and no longer recommends approval (a "SUBSEQUENT DETERMINATION"), but only at a time that is after the fifth business day following Parent, as 's receipt of written notice advising Parent that the case may be, Board of Directors of the Company has received a Superior Proposal or an Acquisition Proposal that it has deemed is reasonably likely to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Proposal. Such written notice that its Board intends to effect such Change of Recommendation, specifying shall specify the material terms and conditions of such Superior Proposal or Acquisition Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
(c) In Proposal and state that the event that, during Board of Directors of the foregoing Company is considering making a Subsequent Determination. During such five (5) Business Day business day period, the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation to the Company Stockholders without a Subsequent Determination; PROVIDED, HOWEVER, that any such proposed adjustment shall be at the discretion of Parent at the time. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction that the Board of Directors of the Company determines in its good faith judgment (based on the advice of an independent financial advisor) to be more favorable to the Company Stockholders than the Merger, taking into account all relevant factors (including whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such counterproposal.
(d) Nothing set forth independent financial advisor, the third party is reasonably able to finance the transaction, and any proposed changes to this Agreement that may be proposed by Parent in response to such Alternative Transaction). Notwithstanding any other provision in this Section 6.3 Agreement, the Company shall submit this Agreement to the Company Stockholders whether or not the Board of Directors of the Company makes a Subsequent Determination. Nothing contained in this SECTION 5.5 shall prohibit either party hereto the Company or the Board of Directors of the Company from (A) taking and disclosing to its shareholders a position contemplated by the Company Stockholders pursuant to Rule 14e-2(a) or Rule 14d-9 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a third party, which is consistent with its obligations hereunder or (B) making such disclosure to the Company Stockholders as, in the good faith judgment of the Board of Directors of the Company, after receiving advice from outside counsel is consistent with its obligations hereunder and is required by applicable Law; provided, howeverPROVIDED, that any action taken the Company may not, except as provided by this SECTION 5.5(B), withdraw, qualify or disclosure made pursuant modify, in a manner adverse to Parent, the approval or recommendation of such rules shall not in any way limit Board of Directors of the Merger or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Samples: Merger Agreement (Iwo Holdings Inc)
Board Recommendations. (a) Subject In connection with the Initial Offer and the Subsequent Offer, the Board of Directors of the Company shall subject to Section 4.5(b), recommend to the terms holders of this Section 6.3, neither the Ordinary Shares to tender their Ordinary Shares in the Initial Offer and the Subsequent Offer.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall, except as expressly permitted by this Section 4.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyBuyer, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Initial Offer, the Subsequent Offer or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "ALTERNATIVE TRANSACTION"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "ACQUISITION AGREEMENT") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the original termination date of the Offer, the Board of Directors of the Company determines in good faith that it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 4.8 after taking into consideration advice from outside counsel with respect to its fiduciary duties to Company Shareholders under applicable law, the contrary set forth herein, each Board of Directors of the Company Board may (subject to this and the Parent Board may effect following sentences) inform Company Shareholders that it no longer believes that the Initial Offer and the Subsequent Offer are advisable and no longer recommends the Initial Offer and the Subsequent Offer (a Change of Recommendation"SUBSEQUENT DETERMINATION") and enter into an Acquisition Agreement with respect to a Superior Proposal, provided but only at a time that is after the third business day (i) or the Company or Parentsecond business day, as in the case may be, has received an Acquisition Proposal that it has deemed of a material amendment to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (iiProposal) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) following Buyer's receipt of written notice advising Buyer that the Board of Directors of the party receiving such Company is prepared to accept a Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Proposal. Such written notice that its Board intends to effect such Change of Recommendation, specifying shall specify the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying Proposal, identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of the Company intends to make a Subsequent Determination. During such three business day period (c) In or two business day period in the event that, during the foregoing five (5) Business Day periodcase of a material amendment), the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Buyer to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Board of Directors of the Company to its shareholders proceed with the Company's recommendation to the Company's stockholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision Subsequent Determination. For purposes of this Agreement.
, a "SUPERIOR PROPOSAL" means any proposal (eon its most recently amended or modified terms, if amended or modified) Nothing set forth made by a third party to enter into an Alternative Transaction which the Board of Directors of the Company determines in this Section 6.3 shall its good faith judgment (ibased on, among other things, the advice of an independent financial advisor) permit either to be more favorable to the Company Shareholders than the Initial Offer and the Subsequent Offer from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such independent financial advisor, the third party hereto is reasonably able to terminate finance the transaction, and any proposed changes to this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation that may be proposed by Buyer in response to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may besuch Alternative Transaction).
Appears in 1 contract
Board Recommendations. (a) Subject to Section 5.2(b), the terms respective recommendations of this Section 6.3, neither the Company Board (or any committee thereofBoards of Directors of AIL and EDO described in Sections 2.31(b) nor and 3.31(b) shall be contained in the Parent Board (nor any committee thereof) shall:Proxy Statement.
(i) Neither AIL nor its Board of Directors may withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse its position with respect to the other partythis Agreement, the approval or recommendation by such Board (or any such committee) of this Agreement Ancillary Agreements or the transactions contemplated hereby (any such withdrawalMerger and neither AIL nor its Board of Directors may approve or recommend, amendmentor propose publicly to approve or recommend, modification an AIL Acquisition Transaction, unless, in each case, in the good faith judgment of the Board of Directors of AIL, after consultation with outside counsel, failure to so withdraw, modify, approve or proposal, recommend would constitute a “Change breach of Recommendation”); orfiduciary duty under applicable Law.
(ii) adopt, withdraw or modify would constitute a breach of fiduciary duty under applicable Law. Neither EDO nor its Board of Directors may approve or recommend (recommend, or propose publicly to adopt, approve or recommend, an EDO Acquisition Transaction, unless (A) in the good faith judgment of the Board of Directors of EDO, after consultation with outside counsel, failure to so approve or recommend would constitute a breach of fiduciary duty under applicable Law, and (B) EDO shall have notified AIL of its shareholders intent to approve or stockholders, as the case may be, that they accept any recommend such EDO Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Transaction at least five Business Days prior to publicly doing so.
(b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth contained in this Section 6.3 Agreement shall prohibit either party hereto EDO from taking and disclosing to its shareholders stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, provided that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision for all purposes of this Agreement, taking a position under Rule 14e-2(a)(2) or 14e-2(a)(3) with respect to an EDO Acquisition Transaction shall be deemed to be an approval or recommendation of such EDO Acquisition Transaction.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger and Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms holders of the Company Common Stock to vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approvals by the Company Stockholders of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the approval of this Agreement by the Company Stockholders, the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.9 and after receipt of written advice from outside counsel that it is required to do so by its fiduciary duties to Company Stockholders under applicable Law, the contrary set forth herein, each Board of Directors of the Company Board may (subject to this and the Parent Board may effect following sentences) inform Company Stockholders that it no longer believes that the Merger is advisable and no longer recommends approval (a Change of Recommendation, provided that (i"Subsequent Determination") the Company or Parent, as the case may be, has received and enter into an Acquisition Proposal that it has deemed Agreement with respect to be a Superior Proposal and such Superior Proposal has not been withdrawn Proposal, but only at a time that is after the time such action is taken, (ii) the Company Special Meeting or the third business day following Parent's receipt of written notice advising Parent Special Meeting, as the case may be, has not occurred, (iii) that the Board of Directors of the party receiving such Company has received a Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Proposal. Such written notice that its Board intends to effect such Change of Recommendation, specifying shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
(c) In Proposal and state that the event that, during Board of Directors of the foregoing five (5) Business Day Company intend to make a Subsequent Determination. During such three business day period, the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Company to proceed with its recommendation to its shareholders stockholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange ActSubsequent Determination; provided, however, that any action taken or disclosure made pursuant to such rules proposed adjustment shall not in any way limit or modify be at the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation discretion of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as at the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.time. For
Appears in 1 contract
Board Recommendations. (a) Subject to the terms of this Section 6.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by such Board (of Directors or any such committee) committee of this EXECUTION COPY Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “"Change of Recommendation”"); or
(ii) adopt, approve or recommend (to its stockholders that they accept, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Proposal.
(b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of RecommendationRecommendation or approve or recommend to its stockholders that they accept, or propose publicly to adopt, approve or recommend, any Superior Proposal, provided that (i) the Company or Parent, as the case may berespectively, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Stockholders Meeting or the Parent Special Stockholders Meeting, as the case may berespectively, has not occurred, and (iii) the Board of Directors of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary the failure to take such action in order would be reasonably likely to comply with be a breach of its fiduciary duties under applicable Law Law, and (iv) the party hereto receiving such Superior Proposal has provided the other party hereto five (5) Business Days business days prior written notice that its Board of Directors intends to effect take such Change of Recommendationaction, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person person or Persons persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of RecommendationRecommendation or approve or recommend to its stockholders that they accept, or propose publicly to adopt, approve or recommend, any Superior Proposal, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act, or from making any other disclosure if the Company Board or the Parent Board, as the case may be, determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably likely to be a breach of its fiduciary duties under applicable Law; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s 's obligation to duly call, give notice of, convene and hold its respective Special Merger Stockholders Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, stockholders the Company Voting Stockholder Proposal or and the Parent Voting Proposal, as the case may be, EXECUTION COPY Stockholder Proposal at its respective Special Merger Stockholders Meeting, or (v) permit either party hereto to submit to for a vote of its shareholders or stockholders, as the case may be, respective stockholders at or prior to its respective Special Meeting, Merger Stockholders Meeting any Acquisition Proposal other than the Company Parent Voting Proposal or and the Parent Company Voting Proposal, as applicable.
(f) For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal that the case may beBoard of Directors of the party receiving it determines in good faith (after (i) consultation with its independent financial advisor of nationally recognized reputation and (ii) taking into account all of the terms and conditions of such proposal and this Agreement, including (A) any counterproposal by the other party to this Agreement, (B) the likelihood that the transactions contemplated by such Acquisition Proposal will close in a timely manner, and (C) the extent to which the financing for the transactions contemplated by such Acquisition Proposal, to the extent required, is committed or is capable of being obtained on the terms proposed) is more favorable to such party's stockholders than the Merger or the counter proposal.
Appears in 1 contract
Board Recommendations. (a) Subject to Neither the terms Board of this Section 6.3, neither Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
thereof shall (i) withdraw withdraw, or propose publicly to withdraw, in a manner adverse to the Parent, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (ii) subject to Section 6.5(b), modify, or propose publicly to withdraw modify in a manner adverse to the Parent, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iv) approve or recommend or propose to approve or recommend, or execute or enter into any Acquisition Agreement related to any -42- 47 Acquisition Proposal. Notwithstanding the foregoing, if, prior to the date that is the earlier of the 60th day following the date of execution of this Agreement and the date of the Stockholders' Meeting, in response to a Superior Proposal that did not result from a breach of Section 6.9, the Board of Directors of the Company, in exercise of its fiduciary duties, reasonably determines in good faith, based upon the written advice of independent outside legal counsel, that the Board of Directors of the Company is required to do so to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Board of Directors of the Company may, after providing the Parent with at least 72 hours advance written notice of its decision to take such action, modify or propose publicly to modify, in a manner adverse to the other partyParent, the approval or recommendation by such Board (of the Merger or any such committee) of this Agreement or by the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change Board of Recommendation”); or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as Directors of the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Company.
(b) Notwithstanding anything to Nothing contained in this Section 6.5 or any other provision hereof shall prohibit the contrary set forth herein, each Company or the Board of Directors of the Company Board and the Parent Board may effect a Change of Recommendation, provided that from (iA) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule the Company Stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a third party, which is consistent with its obligations hereunder or (B) making such disclosure to the Company Stockholders as, in the reasonable good faith judgment of the Board of Directors of the Company, after receiving advice from independent outside legal counsel, is consistent with its obligations hereunder and is required by applicable law; provided, howeverthat the Company may not, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in except as provided by this Section 6.3 shall (i) permit either party hereto 6.5, modify, or propose publicly to terminate modify, in a manner adverse to the Parent, the approval or recommendation of such Board of Directors of the Merger or this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal approve or the Parent Voting recommend an Acquisition Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto propose publicly to submit to a vote of its shareholders approve or stockholders, as the case may be, at or prior to its respective Special Meeting, any recommend an Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Board Recommendations. (a) Subject to the terms of Section 6.2(b), (i) the Agere Board shall recommend that the Agere Stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law (the “Agere Board Recommendation”), and (ii) the LSI Board shall recommend that the LSI Stockholders approve the issuance of shares of LSI Common Stock in the Merger in accordance with the applicable rules of the NYSE (the “LSI Board Recommendation”).
(b) Subject to the terms of this Section 6.36.2(b), (x) neither the Company Agere Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall withhold, withdraw, amend or modify in a manner adverse to LSI, or publicly propose to withhold, withdraw, amend, modify, qualify or condition in a manner adverse to LSI, the Agere Board Recommendation (an “Agere Board Recommendation Change”), and (y) shallneither the LSI Board nor any committee thereof shall withhold, withdraw, amend, modify, qualify or condition in a manner adverse to Agere, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Agere, the LSI Board Recommendation (an “LSI Board Recommendation Change”); provided, however, that notwithstanding the foregoing, at any time prior to the receipt of the Requisite Agere Stockholder Approval in the case of Agere, or receipt of the Requisite LSI Stockholder Approval in the case of LSI, the Agere Board may effect an Agere Board Recommendation Change and the LSI Board may effect a LSI Board Recommendation Change, in either case if and only if either:
(i) withdraw (A) the party proposing to take such action has received an Acquisition Proposal relating to it that constitutes a Superior Proposal other than as a result of a breach or modifyviolation of the terms of Section 6.1, (B) neither the party proposing to take such action nor any of its representatives shall have breached or propose publicly violated the provisions of Section 6.1 in connection with such Acquisition Proposal, (C) prior to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by effecting such Agere Board (or any such committee) of this Agreement Recommendation Change or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholdersLSI Board Recommendation Change, as the case may be, that they accept any Acquisition Proposal or Superior Proposal the party proposing to take such action shall have given the other party hereto at least five (as defined 5) days notice thereof and the opportunity to meet and discuss in Section 9.3).
(b) Notwithstanding anything to the contrary set forth herein, each good faith a modification of the Company Board terms and conditions of this Agreement so that the Parent Board transactions contemplated hereby may effect a Change of Recommendation, provided that be effected and (iD) the Company other party hereto shall not have made, within five (5) days after receipt of such party’s written notice of its intention to effect an Agere Board Recommendation Change or Parentan LSI Board Recommendation Change, as the case may be, has received an Acquisition Proposal a counter-offer or proposal that it has deemed the board of directors of the party proposing to be take such action reasonably determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to its stockholders as such Superior Proposal and (E) after such Superior Proposal has not been withdrawn at discussions, the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board board of directors of the party receiving proposing to take such Superior Proposal action reasonably determines in good faith (after consultation with its outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by the other party hereto pursuant to the immediately preceding clause (D)) that it is necessary the failure to take effect such action in order Agere Board Recommendation Change or an LSI Board Recommendation Change, as the case may be, would reasonably be expected to comply with be a breach of its fiduciary duties under applicable Law and Delaware Law; or Table of Contents (ivii) (A) prior to effecting the party receiving such Superior Proposal has provided Agere Board Recommendation Change or the other party five (5) Business Days prior written notice that its LSI Board intends to effect such Change of RecommendationRecommendation Change, specifying as the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day periodcase may be, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider have given the other party hereto at least five (5) days notice thereof and cause its financial the opportunity to meet and legal advisors to negotiate on its behalf discuss in good faith the purported basis for the proposed Agere Board Recommendation Change or the LSI Board Recommendation Change, as the case may be, the other party’s reaction thereto and any possible modification of the terms and conditions of this Agreement in response thereto so that the transactions contemplated hereby may be effected, and (B) after such discussions, the board of directors of the party proposing to take such action reasonably determines in good faith (after consultation with outside legal counsel) that the failure to effect such Agere Board Recommendation Change or LSI Board Recommendation Change, as the case may be, would reasonably be expected to be a breach of its fiduciary duties under Delaware Law. Each of Agere and LSI acknowledge and hereby agree that any Agere Board Recommendation Change or LSI Board Recommendation Change effected (or proposed to be effected) in response to or in connection with a Superior Proposal may be made pursuant to the immediately preceding clause (i) only, and may not be made pursuant to the immediately preceding clause (ii) and any Agere Board Recommendation Change or LSI Board Recommendation Change, as the case may be, may only be made pursuant to this Section 6.2(b).
(c) Nothing in this Agreement shall prohibit the Agere Board or the LSI Board from taking and disclosing to the Agere Stockholders or the LSI Stockholders, respectively, a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, or with fiduciary duties under applicable law; provided, however, that neither Agere (with respect to statements made by the terms of such counterproposalAgere Board) nor LSI (with respect to statements made by the LSI Board) pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14(d)-9 under the Exchange Act or as required by fiduciary duties shall make disclosures that would amount to an Agere Board Recommendation Change or an LSI Board Recommendation Change, other than pursuant to Section 6.2(b).
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 6.2 shall (i) permit either party hereto to terminate this Agreement Agreement, (ii) affect any other obligation of the parties hereto under this Agreement, (iii) limit the obligation of either party’s obligation party hereto to duly call, give notice of, convene and hold its respective Special Merger Stockholder Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as stockholders the case may be, the Company Voting Agere Stockholder Proposal or the Parent Voting LSI Stockholder Proposal, as the case may beapplicable, at its respective Special Merger Stockholder Meeting, or (v) permit either party hereto to submit to for a vote of its shareholders or stockholders, as the case may be, respective stockholders at or prior to its respective Special Meeting, Merger Stockholder Meeting any Acquisition Proposal other than the Company Agere Voting Proposal or and the Parent LSI Voting Proposal, as the case may beapplicable.
Appears in 1 contract
Samples: Merger Agreement (Lsi Logic Corp)
Board Recommendations. (a) Subject to Neither the terms Board of this Section 6.3, neither Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
thereof shall (i) withdraw withdraw, or propose publicly to withdraw, in a manner adverse to the Parent, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (ii) subject to Section 6.5(b), modify, or propose publicly to withdraw modify in a manner adverse to the Parent, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iv) approve or recommend or propose to approve or recommend, or execute or enter into any Acquisition Agreement related to any -42- 48 Acquisition Proposal. Notwithstanding the foregoing, if, prior to the date that is the earlier of the 60th day following the date of execution of this Agreement and the date of the Stockholders' Meeting, in response to a Superior Proposal that did not result from a breach of Section 6.9, the Board of Directors of the Company, in exercise of its fiduciary duties, reasonably determines in good faith, based upon the written advice of independent outside legal counsel, that the Board of Directors of the Company is required to do so to comply with its fiduciary duties to the Company Stockholders under applicable Law, the Board of Directors of the Company may, after providing the Parent with at least 72 hours advance written notice of its decision to take such action, modify or propose publicly to modify, in a manner adverse to the other partyParent, the approval or recommendation by such Board (of the Merger or any such committee) of this Agreement or by the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change Board of Recommendation”); or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as Directors of the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3)Company.
(b) Notwithstanding anything to Nothing contained in this Section 6.5 or any other provision hereof shall prohibit the contrary set forth herein, each Company or the Board of Directors of the Company Board and the Parent Board may effect a Change of Recommendation, provided that from (iA) the Company or Parent, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule the Company Stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a third party, which is consistent with its obligations hereunder or (B) making such disclosure to the Company Stockholders as, in the reasonable good faith judgment of the Board of Directors of the Company, after receiving advice from independent outside legal counsel, is consistent with its obligations hereunder and is required by applicable law; provided, howeverthat the Company may not, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in except as provided by this Section 6.3 shall (i) permit either party hereto 6.5, modify, or propose publicly to terminate modify, in a manner adverse to the Parent, the approval or recommendation of such Board of Directors of the Merger or this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal approve or the Parent Voting recommend an Acquisition Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto propose publicly to submit to a vote of its shareholders approve or stockholders, as the case may be, at or prior to its respective Special Meeting, any recommend an Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Board Recommendations. (a) Subject In connection with the Merger and the Shareholder Approvals, the Board of Trust Managers of ACT and the Board of Directors of ICH shall (i) subject to Section 6.7(b) hereof, recommend to the terms holders of ACT Common Shares and ICH Stock, respectively, to vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approvals by the shareholders of ACT and the stockholders of ICH, as the case may be, of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such approval.
(b) Neither the Company Board (or any committee thereof) of Trust Managers of ACT nor the Parent Board (of Directors of ICH nor any committee thereof) thereof shall:
, except as expressly permitted by this Section 6.7 (b), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyparty to this Agreement, the approval or recommendation by of their respective Boards or such Board (committees of the Merger or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend, any transaction involving an Acquisition Proposal (as defined below) from a third party (an "Alternative Transaction"), or (iii) cause ACT or ICH, as the case may be, to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if the Board of Trust Managers of ACT or the Board of Directors of ICH, as the case may be, determines in good faith, after such Board has received a Superior Proposal (as defined below), in compliance with Section 6.8, and after receiving advice from outside counsel as to its fiduciary duties to its respective shareholders or stockholders, as the case may be, under applicable law, such Board may (subject to this Section 6.7(b)) inform its shareholders or stockholders, as the case may be, that it no longer believes that the Merger is advisable and no longer recommends approval of the Merger (a "Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, but only at a time that is after the third business day following receipt by the other party to this Agreement of written notice advising such other party that such Board has received a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal, identify the person making such Superior Proposal and state that such Board intends to make a Subsequent Determination. During such three-business day period, the party intending to make such Subsequent Determination shall provide an opportunity for the other party hereto to propose such adjustments to the terms and conditions of this Agreement as would enable the party intending to make such Subsequent Determination to proceed with its recommendation to its shareholders or stockholders, as the case may be, without a Subsequent Determination; provided, however, that they accept the acceptance of any such proposed adjustment shall be at the sole discretion of the Board that has received a Superior Proposal, exercised in good faith, and this Agreement shall be amended to reflect any such accepted adjustments. ACT and ICH hereby acknowledge and agree that the other party hereto may enter into an Acquisition Proposal or Agreement with respect to a Superior Proposal (as defined in accordance with this Section 9.36.7, whether or not this Agreement is terminated, and that, in the event that either ACT or ICH enters into an Acquisition Agreement with respect to a Superior Proposal in accordance with this Section 6.7(b).
(b) Notwithstanding anything , neither the other party hereto nor the parties to such Acquisition Agreement may propose or enter into any adjustments to the contrary set forth hereinterms and conditions of this Agreement or such Acquisition Agreement, each of respectively. Notwithstanding the Company Board foregoing, unless this Agreement is earlier terminated in accordance with its terms, this Agreement and the Parent Merger shall be submitted to the shareholders of ACT and the stockholders of ICH whether or not the their respective Boards have made a Subsequent Determination. For purposes of this Agreement, a "Superior Proposal" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction that the Board may effect a Change of Recommendation, provided that (i) Trust Managers of ACT or the Company or ParentBoard of Directors of ICH, as the case may be, has received determines in its good faith judgment (based on, among other things, the written advice of an Acquisition Proposal that it has deemed independent financial advisor) to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary more favorable to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.its
Appears in 1 contract
Board Recommendations. (a) Subject to In connection with the terms of this Section 6.3Merger and Stockholders' Meeting, neither the Company Board of Directors shall (or any committee thereofi) nor subject to Section 5.6(b) hereof, recommend to the Parent holders of shares of Company Common Stock to vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approvals by the Company's stockholders of this Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Company Board (of Directors nor any committee thereof) thereof shall:
, except as expressly permitted by this Section 5.6 (b), (i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of the Company Board of Directors or such Board (committee of the Merger or any such committee) of this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal or Superior Proposal (as defined in Section 9.35.10) from a third party (an "Alternative Transaction").
, or (biii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding anything to the contrary set forth hereinforegoing, each of if during the 20-day period commencing on the date hereof (the "Initial Period"), the Company Board and the Parent Board may effect a Change of RecommendationDirectors determines in good faith, provided that (i) the Company or Parent, as the case may be, after it has received an Acquisition Proposal that it has deemed to be a Superior Proposal (as hereinafter defined) in compliance with Section 5.10 and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Meeting or the Parent Special Meeting, after receiving advice from outside counsel as the case may be, has not occurred, (iii) the Board of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties to the Company's stockholders under applicable Law Law, the Company Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Merger is advisable and no longer recommends approval of the Merger (iva "Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, but only at a time that is after the party receiving such Superior Proposal has provided the other party five (5) Business Days prior third business day following Parent's receipt of written notice advising Parent that its the Company Board intends to effect such Change of Recommendation, specifying Directors has received a Superior Proposal. Such written notice shall specify the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying Proposal, identify the Person or Persons person making such Superior Proposal.
(c) In Proposal and state that the event that, during the foregoing five (5) Business Day Company Board of Directors intends to make a Subsequent Determination. During such three business day period, the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of such counterproposal.
(d) Nothing set forth in this Section 6.3 shall prohibit either party hereto from taking and disclosing Agreement as would enable the Company to proceed with its recommendation to its shareholders stockholders without a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange ActSubsequent Determination; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.,
Appears in 1 contract
Samples: Merger Agreement (Sprint Corp)
Board Recommendations. (a) Subject In connection with the Merger and Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(c), recommend to the terms Company Stockholders to vote in favor of the Merger and use all commercially reasonable efforts to obtain the necessary approval by the Company Stockholders of this Section 6.3Agreement, neither and (ii) otherwise comply with legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) Special Committee shall:, except as expressly permitted by Section 5.5(c):
(i) withdraw withdraw, qualify, or in a manner adverse to Parent, modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, modify, the approval or recommendation by of such Board of Directors or such committee of the Merger or this Agreement,
(ii) approve or recommend, or propose publicly to approve or recommend, any such committeetransaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or
(iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction.
(c) Notwithstanding Sections 5.5(a) and 5.5(b), prior to the approval of this Agreement by the Company Stockholders, the Board of Directors of the Company or the transactions contemplated hereby Special Committee may (any such withdrawalsubject to this Section 5.5(c)):
(i) inform Company Stockholders that it no longer believes that the Merger is advisable and no longer recommends approval of the Merger (a "Subsequent Determination"), amendmentbut only if (A) the Board of Directors of the Company or the Special Committee receives a Superior Proposal (as hereinafter defined) which is not subsequently withdrawn, modification and (B) the Board of Directors of the Company or proposalthe Special Committee determines in good faith and after consultation with its outside legal counsel with respect to its fiduciary duties to Company Stockholders under applicable Delaware Law, that the failure to make a “Change of Recommendation”)Subsequent Determination would be inconsistent with its fiduciary obligations to the Company Stockholders under applicable Delaware Law; or
(ii) adopt, approve or recommend (or propose publicly to adopt, approve or recommendterminate this Agreement in accordance with Section 7.1(d)(ii) to its shareholders or stockholders, as hereof if the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3).
(b) Notwithstanding anything to the contrary set forth herein, each Board of Directors of the Company Board and or the Parent Board may effect a Change of Recommendation, provided that (i) Special Committee authorizes the Company or Parentto enter into any Acquisition Agreement with respect to any Superior Proposal, as the case may be, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, but only if: (ii) the Company Special Meeting or the Parent Special Meeting, as the case may be, has not occurred, (iiiA) the Board of Directors of the party receiving Company or the Special Committee receives a Superior Proposal which is not subsequently withdrawn, (B) at least three business days shall have elapsed since delivery by the Company to Parent of written notice (1) specifying the terms and conditions of such Superior Proposal reasonably Proposal, (2) identifying the person making such Superior Proposal, and (3) stating that the Board of Directors of the Company or the Special Committee intends to make a Subsequent Determination and enter into an Acquisition Agreement with respect to such Superior Proposal, all of which information will be kept confidential in accordance with the terms of the Confidentiality Agreement, (C) during the elapsed time period described in Section 5.5(c)(ii)(B) above, the Company shall have provided an opportunity for Parent to propose such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation to the Company Stockholders without a Subsequent Determination, and (D) the Board of Directors of the Company or the Special Committee determines in good faith (and after consultation with its outside legal counsel) counsel with respect to its fiduciary duties to Company Stockholders under applicable Delaware Law, that it is necessary the failure to take enter into the Acquisition Agreement with respect to such action in order to comply Superior Proposal would be inconsistent with its fiduciary duties obligations to the Company Stockholders under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior written notice that its Board intends to effect such Change of Recommendation, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person or Persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposalDelaware Law.
(d) Nothing set forth For purposes of this Agreement, a "Superior Proposal" means any unsolicited bona fide proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction and which the Board of Directors of the Company or the Special Committee determines in its good faith judgment (after consultation with its legal counsel and independent financial advisors) is more favorable to the Company Stockholders than the Merger from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such independent financial advisor, the third party is reasonably able to finance the transaction, any proposed changes to this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated Agreement that may be proposed by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant Parent in response to such rules shall not in any way limit or modify Alternative Transaction and the effect that any action taken or disclosure made pursuant ability and timing for the satisfaction of the conditions to closing the Merger and such rules has under Alternative Transaction). Notwithstanding any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 shall (i) permit either party hereto to terminate , unless and until this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may beis terminated, the Company Voting Proposal or shall submit this Agreement to the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to Company Stockholders for a vote of its shareholders or stockholders, as at the case may be, at or prior to its respective Special Stockholders' Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may be.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Loehmanns Holdings Inc)
Board Recommendations. (a) Subject In connection with the Initial Offer, the Subsequent Offer, the Merger and Stockholders' Meeting, the Board of Directors of the Company shall (i) subject to Section 5.5(b), recommend to the terms holders of the Company Common Stock to tender their shares of Company Common Stock in the Initial Offer and Subsequent Offer and vote in favor of the Merger and use its reasonable best efforts to obtain the necessary approvals by the Company Stockholders of this Section 6.3, neither Agreement and (ii) otherwise comply with all legal requirements applicable to such meeting.
(b) Neither the Board of Directors of the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereofthereof shall, except as expressly permitted by this Section 5.5(b) shall:
(i) withdraw withdraw, qualify or modify, or propose publicly to withdraw withdraw, qualify or modify, in a manner adverse to the other partyParent, the approval or recommendation by of such Board (of Directors or any such committee) committee of the Initial Offer, the Subsequent Offer, the Merger or this Agreement or the transactions contemplated hereby (any such withdrawalAgreement, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (recommend, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any transaction involving an Acquisition Proposal (as hereinafter defined) from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Alternative Transaction. Notwithstanding the foregoing, if prior to the approval of this Agreement by the Company Stockholders, and in any event no later than the original termination date of the Initial Offer, the Board of Directors of the Company determines in good faith, after it has received a Superior Proposal (as defined hereinafter defined) in compliance with Section 9.3).
(b) Notwithstanding anything 5.9 and after taking into consideration advice from outside counsel with respect to its fiduciary duties to Company Stockholders under applicable Delaware law, the contrary set forth herein, each Board of Directors of the Company Board may (subject to this and the Parent Board may effect following sentences) inform Company Stockholders that it no longer believes that the Merger is advisable and no longer recommends approval (a Change of Recommendation"Subsequent Determination") and enter into an Acquisition Agreement with respect to a Superior Proposal, provided but only at a time that is after the fifth business day (i) or the Company or Parentsecond business day, as in the case may be, has received an Acquisition Proposal that it has deemed of a material amendment to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (iiProposal) the Company Special Meeting or the following Parent's receipt of written notice advising Parent Special Meeting, as the case may be, has not occurred, (iii) that the Board of Directors of the party receiving such Company is prepared to accept a Superior Proposal reasonably determines in good faith (after consultation with its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law and (iv) the party receiving such Superior Proposal has provided the other party five (5) Business Days prior Proposal. Such written notice that its Board intends to effect such Change of Recommendation, specifying shall specify the material terms and conditions of such Superior Proposal (and providing include a written copy thereof) and identifying thereof with all accompanying documentation, if in writing), identify the Person or Persons person making such Superior Proposal.
Proposal and state that the Board of Directors of the Company intends to make a Subsequent Determination. During such five business day period (c) In or two business day period in the event that, during the foregoing five (5) Business Day periodcase of a material amendment), the party hereto that has received the foregoing notice Company shall make a counterproposal provide an opportunity for Parent to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take propose such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. For purposes of this Agreement, a "Superior Proposal" means any proposal (on its most recently amended or modified terms, if amended or modified) made by a third party to enter into an Alternative Transaction which the Board of Directors of the Company determines in its good faith judgment (based on, among other things, the advice of an independent financial advisor) to be more favorable to the Company Stockholders than the Merger and the Initial Offer and Subsequent Offer, from a financial point of view (taking into account whether, in the good faith judgment of the Board of Directors of the Company, after obtaining the advice of such counterproposal.
(d) Nothing set forth independent financial advisor, the third party is reasonably able to finance the transaction, and any proposed changes to this Agreement that may be proposed by Parent in this Section 6.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant response to such rules Alternative Transaction), except that for purposes of the definition of "Superior Proposal," an "Alternative Transaction" shall not mean an Acquisition Proposal by a third party, provided that the reference to "25%" in any way limit or modify the effect that any action taken or disclosure made pursuant definition of "Acquisition Proposal" shall be deemed to such rules has under be "51%." Notwithstanding any other provision of this Agreement.
(e) Nothing set forth , the Company shall in this Section 6.3 shall no way limit or prevent (i) permit either party hereto to terminate this Agreement Company Stockholders from tendering shares of Company Common Stock in the Initial Offer or Subsequent Offer or (ii) affect any other obligation Buyer from purchasing such shares of Company Common Stock whet her or not the Board of Directors of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Meeting, (iv) relieve either party hereto of its obligation to submit to Company makes a vote of its shareholders or stockholders, as the case may be, the Company Voting Proposal or the Parent Voting Proposal, as the case may be, at its respective Special Meeting, or (v) permit either party hereto to submit to a vote of its shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, any Acquisition Proposal other than the Company Voting Proposal or the Parent Voting Proposal, as the case may beSubsequent Determination.
Appears in 1 contract
Samples: Merger Agreement (Showpower Inc)
Board Recommendations. (a) Subject to the terms of this Section 6.37.3, neither the Company Board (or any committee thereof) nor the Parent Board (nor any committee thereof) shall:
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the other party, the approval or recommendation by such Board (of Directors or any such committee) committee of this Agreement or the transactions contemplated hereby (any such withdrawal, amendment, modification or proposal, a “Change of Recommendation”); or
(ii) adopt, approve or recommend (to its shareholders that they accept, or propose publicly to adopt, approve or recommend) to its shareholders or stockholders, as the case may be, that they accept any Acquisition Proposal or Superior Proposal (as defined in Section 9.3below).
(b) Notwithstanding anything to the contrary set forth herein, each of the Company Board and the Parent Board may effect a Change of Recommendation, provided that (i) the Company or Parent, as the case may berespectively, has received an Acquisition Proposal that it has deemed to be a Superior Proposal and such Superior Proposal has not been withdrawn at the time such action is taken, (ii) the Company Special Shareholders Meeting or the Parent Special Shareholders Meeting, as the case may berespectively, has not occurred, and (iii) the Board of Directors of the party receiving such Superior Proposal reasonably determines in good faith (after consultation with based on the advice of its outside legal counsel) that it is necessary to take such action in order to comply with its fiduciary duties under applicable Law Law, and (iv) the party hereto receiving such Superior Proposal has provided the other party hereto five (5) Business Days business days prior written notice that its Board of Directors intends to effect take such Change of Recommendationaction, specifying the material terms and conditions of such Superior Proposal (and providing a written copy thereof) and identifying the Person person or Persons persons making such Superior Proposal.
(c) In the event that, during the foregoing five (5) Business Day five-day period, the party hereto that has received the foregoing notice shall make a counterproposal to the party hereto that is proposing to effect a Change of Recommendation, the party that is proposing to take such action shall consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the terms of such counterproposal.
(d) Nothing set forth in this Section 6.3 7.3 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that any action taken or disclosure made pursuant to such rules shall not in any way limit or modify the effect that any action taken or disclosure made pursuant to such rules has under any other provision of this Agreement.
(e) Nothing set forth in this Section 6.3 7.3 shall (i) permit either party hereto to terminate this Agreement (ii) affect any other obligation of the parties under this Agreement, (iii) limit either party’s obligation to duly call, give notice of, convene and hold its respective Special Merger Shareholders Meeting, (iv) relieve either party hereto of its obligation to submit to a vote of its shareholders or stockholders, as the case may be, the Company Voting Shareholder Proposal or the Parent Voting Shareholder Proposal, as the case may beappropriate, at its respective Special Merger Shareholders Meeting, or (v) permit either party hereto to submit to for a vote of its respective shareholders or stockholders, as the case may be, at or prior to its respective Special Meeting, Merger Shareholders Meeting any Acquisition Proposal other than the Company Parent Voting Proposal or and the Parent Company Voting Proposal, as the case may beapplicable.
Appears in 1 contract
