Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 4 contracts
Samples: Merger Agreement (Applera Corp), Merger Agreement (Invitrogen Corp), Merger Agreement (Applera Corp)
Change of Recommendation. (i) Notwithstanding anything Section 5.2(a), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend, modify, qualify or condition in a manner adverse to Acquiror its Recommendation, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its shareholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) The Scheme Meeting has not occurred;
(2) It shall have (A) the Company shall have given Parent and Merger Sub prompt provided Acquiror with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least five (5) business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which notice shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (cIII) that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that such notice and such statement shall not constitute a Change of Recommendation), (B) the Company shall have given Parent provided to Acquiror a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms Person or group making the Superior Offer or any of this Agreement its Representatives and (or make another proposalC) and, during provided Acquiror with the Notice Period, the Company shall, opportunity to meet and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions discuss a modification of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that the transaction theretofore determined to be a Superior Offer no longer constitutes a Superior Offer;
(3) Either (A) on or before the expiration of the five (5) business day period following the delivery to Acquiror of any Change of Recommendation Notice, Acquiror does not make a written offer, which shall be binding and enforceable against Acquiror and capable of acceptance by the Company (a “Matching Bid”), in response to such Adverse Superior Offer, or (B) following receipt of a Matching Bid within the five (5) business day period following the delivery to Acquiror of any Change of Recommendation Change is otherwise not necessaryNotice, and (C) the Company’s Board of Directors of the Company determines in good faith (at a meeting of the Board of Directors of the Company at which it consults prior to such determination with its outside legal counsel and its financial advisors (including the Independent Financial Advisor)) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have determined materially breached any of the provisions set forth in this Section 5.4 (including Section 5.4(b)) in connection with such Acquisition Proposal.
(ii) In addition, and notwithstanding anything to the contrary set forth herein, at any time prior to obtaining the approval of the shareholders of the Company of this Agreement and the Scheme of Arrangement, the Board of Directors of the Company may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after considering the results consultation with its outside legal advisors, that, in light of such negotiations and giving Intervening Event, the failure of such Board of Directors to effect such a Change of Recommendation would be reasonably likely to the proposals made by Parent and Merger Subresult in a breach of its fiduciary duties under applicable Legal Requirements; provided, if anyhowever, that such Alternative Transaction Proposal(A) the Company shall send to Acquiror written notice of its intention to effect a Change of Recommendation, if applicablespecifying in reasonable detail the reasons therefor, continues at least five (5) business days prior to constitute effecting a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thatof Recommendation, (1) if during the Notice Period described in clause (B) the Company shall provide Acquiror with an opportunity to meet and discuss the basis for a Change of Recommendation, Acquiror’s reaction thereto and any possible modification to the terms and conditions of this paragraph any revisions are made to Agreement in response thereto so that the Superior Proposaltransactions contemplated hereby may be effected and (C) after such discussions, if applicable, and the Company’s Board of Directors in its good faith judgment determines (of the Company concludes, after consultation with its financial advisors and outside legal advisors, that the failure to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements.
(iii) that such revisions are material (it being understood that any change in the purchase price or form The Board of consideration in such Superior Proposal shall be deemed a material revision), Directors of the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 4 contracts
Samples: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Holding Co. Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iv) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Prospectus/Joint Proxy Statement pursuant to clause (iii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would be inconsistent with result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that prior to any such Adverse Recommendation Change, (A) the Company shall have given have, at least five (5) days prior to taking such action, provided to Parent and Merger Sub prompt written notice advising them which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may withhold, withdraw, amend or modify the Company Board Recommendation and, in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Prospectus/Joint Proxy Statement pursuant to clause (iii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least five (5) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving effect to Superior Offer, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of its good faith judgment determines fiduciary duties to its stockholders under applicable Legal Requirements; and
(after consultation with its financial advisors and outside legal advisors5) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the The Company shall deliver a new written notice to Parent and shall comply with not have materially breached (directly or indirectly) any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) 5.3, as applicable, with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.)
Change of Recommendation. Notwithstanding anything Solely in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Proposal, the Company’s Board of Directors mayof the Company may make a Change of Recommendation, if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors i) through (vi) are met:
(i) the Superior Proposal has been made, has not been withdrawn and outside legal advisorscontinues to be a Superior Proposal;
(ii) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Company Shareholder Approval has not yet been obtained;
(Aiii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Company has received a Superior Proposal, a summary of (2) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given provided to Parent a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Proposal in connection with Parent in good faith such Superior Proposal (to the extent Parent desires not previously provided to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsParent), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, ; and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Superior Proposal would no longer be a Superior Proposal;
(iv) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s Board of Directors shall have has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and TWP or another financial adviser of national standing in the United States of America) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal;
(v) the Board of Directors of the Company has concluded in good faith, after considering the results receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation is required to effect a Change of Recommendation to comply with its financial advisors and outside legal advisorsfiduciary obligations to the shareholders of the Company under applicable law of the State of Israel; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 3 contracts
Samples: Merger Agreement (Scopus Video Networks Ltd.), Merger Agreement (Scopus Video Networks Ltd.), Merger Agreement (Harmonic Inc)
Change of Recommendation. (i) Notwithstanding anything the provisions of Section 5.2(b), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Company may withhold, withdraw, amend or modify its recommendation in favor of adoption of this Agreement in a manner adverse to Parent, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Stockholders’ Meeting has not occurred;
(2) It shall have (A) the Company shall have given provided Parent and Merger Sub prompt with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least three business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)III) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, and (B) provided to Parent a copy of all materials and information delivered or made available to the Company shall have given Parent and Merger Sub three Person or group making the Superior Offer it has received;
(3) Business Days Either (A) on or before the expiration of the three-business-day period following the delivery to Parent of any Change of Recommendation Notice, Parent does not make a written offer, which shall be binding and enforceable against Parent and capable of acceptance by Company (a “Notice PeriodMatching Bid”), in response to such Superior Offer, or (B) after following receipt of a Matching Bid within the three business day period following the delivery to Parent of each such notice to propose revisions to the terms any Change of this Agreement (or make another proposal) and, during the Notice PeriodRecommendation Notice, the Board of Directors of Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent determines in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment at a meeting of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined of Company at which it consults prior to such determination with outside legal counsel and financial advisor) that after taking into account the Matching Bid, the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, after considering the results following consultation with its outside legal counsel, that, in light of such negotiations Superior Offer and giving effect to after taking into consideration the proposals made by Parent and Merger SubMatching Bid, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) failure of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its good faith judgment determines fiduciary duties under applicable Legal Requirements; and
(after consultation with its financial advisors and outside legal advisors5) that such revisions are material (it being understood that It shall not have materially breached any change of the provisions set forth in the purchase price Section 5.2 or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d5.3 (including Section 5.3(b)).
(ii) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s The Board of Directors does of Company shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 3 contracts
Samples: Merger Agreement (Divx Inc), Merger Agreement (Divx Inc), Merger Agreement (Sonic Solutions/Ca/)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Stockholders’ Meeting has not occurred;
(iii) The Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least five days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (AB) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) that the Company intends to effect a Change of Recommendation;
(iv) After delivering the Change of Recommendation Notice, the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five-day period, if applicableand negotiate in good faith with respect thereto during such five-day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute (in the judgment of the Company’s Board of Directors, after consultation proceed with its financial advisors recommendation to stockholders in favor of approval and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and approval of the Merger without making a Change is otherwise not necessary, and of Recommendation; and
(Cv) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Samples: Merger Agreement (Storage Technology Corp), Merger Agreement (Sun Microsystems, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Parent or the Company, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company or Parent, as the case may be, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(2) In the case of Parent, its stockholders have not approved the Share Issuance, and in good faith the case of the Company, its stockholders have not adopted this Agreement;
(after consultation 3) It shall have provided the other party hereto with written notice of its financial advisors and outside legal advisorsintention to effect a Change of Recommendation (a “Change of Recommendation Notice”) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that at least two business days prior to any such Adverse Recommendation Changeeffecting a Change of Recommendation, which shall state expressly (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of that it has received a Superior Offer, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) After delivering the Change of Recommendation Notice, (B) the Company it shall have given Parent and Merger Sub three (3) Business Days (provided the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate other party hereto with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by the Companyother party for the purpose of enabling such party’s Board of Directors shall have determined to proceed with its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, without effecting a Change of Recommendation;
(5) Its Board of Directors has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior Proposal breach of its fiduciary obligations to its stockholders under applicable Legal Requirements; and
(6) It shall not have breached in any material respect any of the provisions set forth in Section 5.2 or that such Adverse Recommendation Change is otherwise still required; provided further that, this Section 5.3 (1) if during the Notice Period described in including clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revisionSection 5.3(c)(i), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or a Superior Offer (which shall be two (2subject to Section 5.3(d)(i) Business Days instead of three (3) Business Days and (2) not subject to this Section 5.3(d)(ii)), nothing in this Agreement shall prohibit or restrict the event the Company’s Board of Directors does of the Company or Parent, as the case may be, from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that such party shall send to the other party hereto written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Board of Directors of the Company or Parent, as the case may be, shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into, or propose to execute or enter into, any letter of intent of similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) The stockholders of the Company have not approved this agreement in accordance with applicable law;
(iii) The Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least five calendar days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (AB) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) After delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five calendar day period, if applicableand negotiate in good faith with respect thereto during such five calendar day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute (proceed with its recommendation to stockholders in the judgment favor of approval and adoption of this Agreement and approval of the Company’s Merger without making a Change of Recommendation;
(v) the Board of Directors, Directors of the Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change the Superior Offer is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision)counsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Samples: Merger Agreement (Seebeyond Technology Corp), Merger Agreement (Sun Microsystems, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (vi) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Shareholders’ Meeting has not occurred;
(iii) The Company shall have (a) delivered to Parent written notice (a “Change of Recommendation Notice”) at least three (3) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer, and (3) that the Company intends to be effect a Change of Recommendation and the manner in which it intends to do so, (b) provided to Parent a copy of all written materials delivered to the Person or group making the Superior Offer in connection with respect thereto pursuant to this Section 5.4such Superior Offer and a summary of all material oral conversations between the Company and such party regarding the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)) made available to Parent all materials and information made available to the Person or group making the Superior Offer in connection with such Superior Offer;
(iv) After delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such three (3) Business Day period, if applicableand negotiate in good faith with respect thereto during such three (3) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to shareholders in favor of approval and adoption of this Agreement and approval of the Merger without making a Change of Recommendation;
(in v) The Board of Directors of the judgment Company (by a vote of a majority of the independent members of the Board of Directors of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such Superior Offer and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation is necessary and required to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made comply with its fiduciary obligations to the Superior Proposal, if applicable, and the Company’s Board shareholders of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 2 contracts
Samples: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.2(b), at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors of the Company may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make a Change of Recommendation and, in the case of a Superior Proposal or an Adverse Recommendation Change; provided that prior Intervening Event after which Parent does not timely deliver a Continuation Notice (as defined below), terminate this Agreement in accordance with Section 8.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(Aii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least three (x3) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that the decision Company has received a Superior Proposal or determined the existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provide to Parent a copy of all materials and information delivered or made available to the Company shall have given Parent Person or group making the Superior Proposal in connection with a Superior Proposal (to the extent not previously delivered or made available to Parent), and Merger Sub (C) during the aforementioned three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) andDay period, during the Notice Periodif requested by Parent, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent engaged in good faith (negotiations to amend this Agreement in such a manner that the extent Parent desires to negotiate) to make such adjustments Superior Proposal would no longer be a Superior Proposal or, in the terms case of an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Parent shall not have, within the aforementioned three (3) Business Day period, made an offer that the Company’s Board of Directors has in good faith determined (after the receipt of advice from and conditions consultation with its outside legal counsel and a financial adviser of this Agreement so that, if applicable, such national standing) results in the Alternative Transaction Proposal ceases that had been determined to constitute (be a Superior Proposal no longer being a Superior Proposal or, in the judgment case of an Intervening Event, obviates the need for a Change of Recommendation;
(iv) the Board of Directors of the Company has concluded in good faith, after receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal or Intervening Event and after considering any adjustments or negotiations pursuant to the preceding clause (ii), that the Company’s Board of Directors, after consultation ’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect fiduciary obligations to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requiredstockholders of the Company under Delaware Law; provided further that, and
(1v) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 2 contracts
Samples: Merger Agreement (Secure Computing Corp), Merger Agreement (McAfee, Inc.)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, (x) at any time prior to obtaining the time the Company Stockholder ApprovalApproval is obtained, the Company’s Company Board may make a Change of Directors mayRecommendation in connection with a Superior Proposal that is made and not withdrawn (and that continues to be a Superior Proposal) or in response to an Intervening Event, only if it concludes the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor Law and (y) in the event the decision relates to an Alternative Transaction case of a Superior Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to Company may also terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b7.1(f) and to enter into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that neither the Company Board nor the Company shall take any of the foregoing actions unless:
(c), (Bi) the Company shall have given complied in all material respects with its obligations under this Section 5.3(e);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three (3) at least four Business Days in advance (the “Notice Period”) after delivery to the effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with an Acquisition Proposal, the information specified by Section 5.3(c) with respect to such Acquisition Proposal and the material terms and conditions of each such Superior Proposal (and such notice shall include a copy of the latest draft of the proposed Alternative Acquisition Agreement and all other material documents relating to propose revisions such Superior Proposal, including financing documents);
(iii) where requested to the terms of this Agreement (or make another proposal) and, during the Notice Perioddo so by Parent, the Company shallshall have, and shall direct its financial advisors have caused each of the Company Subsidiaries to have, and outside legal advisors toshall have instructed Representatives of the Company and the Company Subsidiaries to have, negotiate negotiated with Parent and its Representatives during the applicable Notice Period in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction that such Superior Proposal ceases would cease to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal oror such Intervening Event would cease to warrant a Change of Recommendation, if in each case, such that the Adverse Recommendation Change does not involve an Alternative Transaction ProposalCompany Board’s failure to take the applicable action described in clauses (x) or (y) above would no longer be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, to make such adjustments however, that in the event of any material revision to the terms and or conditions of the applicable Superior Proposal or any material change in the applicable Intervening Event, as the case may be, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of Section 5.3(e)(ii) and this Agreement so Section 5.3(e)(iii) with respect to such new Determination Notice (except that the Notice Period in respect of such Adverse Recommendation Change is otherwise not necessarynew Determination Notice shall be two Business Days) and Parent shall have had the right to submit a new or revised offer with respect thereto;
(iv) at or following the end of the applicable Notice Period, and (C) the Company’s Company Board of Directors shall have determined in good faithfaith (after consultation with its outside legal counsel) based on the information then available and taking into account Parent’s offers pursuant to Section 5.3(e)(iii) that with respect to any such action proposed to be taken, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, Acquisition Proposal continues to constitute a Superior Proposal or such Intervening Event continues to warrant a Change of Recommendation, as the case may be, and that the failure by the Company Board to take such Adverse Recommendation Change is otherwise proposed action would still requiredreasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided further that, and
(1v) if during in the Notice Period described in clause (B) event of a termination of this paragraph any revisions are made Agreement to the enter into a definitive Alternative Acquisition Agreement with respect to a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 7.1(f) and prior to or concurrently with such termination of this Agreement, the Company shall have paid the Company Termination Fee and any other amounts required by Section 7.4, including interest, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d7.4(e), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Samples: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayor the Special Committee may withhold, if it concludes withdraw, amend or modify its recommendation in good faith favor of adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that its shareholders accept the tender or exchange offer (after consultation with its financial advisors and outside legal advisors) that any of the failure to take such action would be inconsistent with its fiduciary duties under applicable Lawforegoing actions, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of whether by the Company’s Board of Directors to take such action and or the reasons therefor and (y) in the event the decision relates to an Alternative Transaction ProposalSpecial Committee, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) a Superior Offer has been made and has not been withdrawn;
(2) the Company shareholders have not adopted this Agreement;
(3) it shall have provided Parent with written notice of its intention to effect a Change of Recommendation (a “Change of Recommendation Notice”) at least two business days prior to effecting a Change of Recommendation, which shall state expressly (A) that it has received a Superior Offer, (B) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) after delivering the Change of Recommendation Notice, (B) the Company it shall have given provided Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by Parent for the purpose of enabling the Company’s Board of Directors shall have determined or the Special Committee to proceed with its recommendation in favor of the adoption of this Agreement, without effecting a Change of Recommendation;
(5) its Board of Directors or the Special Committee has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors or the Special Committee to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a breach of its fiduciary obligations to its shareholders under applicable laws; and
(6) it shall not have breached in any material respect any of the provisions set forth in this Section 5.02 or Section 5.01 with respect to such Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thata Superior Offer (which shall be subject to Section 5.02(d)(i) and not subject to this Section 5.02(d)(ii)), (1) if during the Notice Period described nothing in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and Agreement shall prohibit or restrict the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) or the Special Committee from making a Change of Recommendation to the extent that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does or the Special Committee determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of it to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ or the Special Committee fiduciary obligations to its shareholders under applicable laws; provided, however, that the Company shall send to Parent written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Company’s Board of Directors or the Special Committee shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.02(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Samples: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least four Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material most recent terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer (and in the event the Company exercises its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b7.1(h), the Company shall provide to Parent a copy of the final agreement to be entered into in connection with the Superior Offer) and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such four-Business Day period, if applicableand negotiate in good faith with respect thereto during such four-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to subsection (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 2 contracts
Samples: Merger Agreement (Lexar Media Inc), Merger Agreement (Micron Technology Inc)
Change of Recommendation. Notwithstanding anything in this Agreement Subject to the contraryprovisions of Section 5.2 and Section 5.3, at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vii) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five-Business Day period, if applicableand negotiate in good faith with respect thereto during such five-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the terms of the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law;
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d5.3; and
(vii) with respect the Company shall have used all commercially reasonable efforts to such new written notice except that mail the new Notice Period shall be two (2) Business Days instead Proxy Statement to the stockholders of three (3) Business Days and (2) in the event Company as promptly as practicable after the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changedate hereof.
Appears in 2 contracts
Samples: Merger Agreement (Cap Gemini Sa), Merger Agreement (Kanbay International Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.02(d), at any time prior to obtaining the Acceptance Time, the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes subject to compliance in all material respects with the other provisions of this Section 6.02, (x) terminate this Agreement pursuant to Section 9.01(f) in order to enter into an Acquisition Agreement providing for a Superior Proposal, or (y) effect an Adverse Recommendation Change in response to an Intervening Event; provided that (1) the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, make (2) in the case of Section 6.02(e)(x), the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and the Company terminates this Agreement pursuant to Section 9.01(f), (3) the Company has provided prior written notice to Parent and Merger Sub, at least four (4) Business Days in advance, that it will take the applicable action referred to in Section 6.02(e)(x) or (y) and specifying in reasonable detail the reasons therefor (a “Notice of Intended Recommendation Change”) (which notice shall not itself constitute an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change), and (A4) the Company shall have given Parent and Merger Sub prompt written notice advising them of has complied in all material respects with the following additional covenants:
(xi) the decision of the Company’s Board of Directors to take if such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided is being taken pursuant to Section 5.4(b) and (c6.02(e)(x), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “if requested by Parent, after providing any such Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodIntended Recommendation Change, the Company shall, and shall direct instruct its financial advisors and outside legal advisors Representatives to, negotiate with Parent and Merger Sub in good faith during any such four (4) Business Day period (it being understood and agreed that any material amendment to the extent terms of any such Superior Proposal (and in any event including any amendment to any price term thereof) shall require a new Notice of Intended Recommendation Change and compliance with the other requirements of this Section 6.02(e) anew except that references herein to a four (4) Business Day period shall be deemed to be references to a two (2) Business Day period) regarding any written and binding proposal by Parent desires to negotiate) to make such adjustments in amend the terms and conditions of this Agreement so that, if applicable, and the other agreements contemplated hereby and at the end of such Alternative Transaction Proposal ceases to constitute four (4) Business Day period (or two (2) Business Day period in the judgment case of a material amendment) the Company’s Company Board again makes the determinations described in clauses (1) and (2) of Directors, after consultation this Section 6.02(e) with its financial advisors and outside legal advisors), a respect to such Superior Proposal or, Proposal; and
(ii) if the such Adverse Recommendation Change does is being made pursuant to Section 6.02(e)(y):
(1) such Adverse Recommendation Change is being made as a result of an event, fact, development or occurrence that materially affects the business, assets or operations of the Company and that was not involve known or reasonably foreseeable by the Company Board as of the date hereof and becomes known to the Company Board after the date hereof and prior to the Acceptance Time (each, an Alternative Transaction Proposal“Intervening Event”); provided that in no event shall any of the following constitute or be deemed to be an Intervening Event: (I) any event, fact, development or circumstance resulting from any breach of this Agreement by the Company, (II) the receipt, existence or terms of any Takeover Proposal or any matter relating thereto or any consequences thereof, (III) the fact, in and of itself, that the Company exceeds any internal or published projections or (IV) changes, in and of themselves, in the price of the Company Common Stock; and
(2) during any such four (4) Business Day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any written and binding proposal by Parent to make such adjustments in amend the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering other agreements contemplated hereby and at the results end of such negotiations and giving effect to four (4) Business Day period the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during Company Board again makes the Notice Period determinations described in clause (B1) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d6.02(e) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeIntervening Event.
Appears in 2 contracts
Samples: Merger Agreement (Nimble Storage Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Change of Recommendation. Notwithstanding anything (i) Except as otherwise provided in this Agreement Agreement, including this Section 5.5(c), the board of directors of the Company shall not (i) withdraw (or qualify or modify in any manner adverse to Parent), or propose publicly to withdraw (or qualify or modify in any manner adverse to Parent), the Company Recommendation or (ii) approve, recommend or declare advisable any Alternative Acquisition Proposal (any such action, a “Change of Recommendation”).
(ii) Notwithstanding the foregoing or anything to the contrarycontrary set forth in this Agreement, including Section 5.5(c)(i), at any time prior to obtaining the Company Requisite Stockholder Approval, the board of directors of the Company may (A) effect a Change of Recommendation following a bona fide written Alternative Acquisition Proposal that did not result from or arise out of a breach of this Section 5.5 and which the Company’s Board board of Directors maydirectors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, in each case, if it concludes and only if, the Company’s board of directors has determined in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would be inconsistent with the fiduciary duties required of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(c)(iii) or (B) following receipt of a bona fide written Alternative Acquisition Proposal which the Company’s board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (an “Alternative Acquisition Agreement”) with respect to such Superior Proposal, if, and only if, the Company’s board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(c)(iii) and, concurrently with entering into an Alternative Acquisition Agreement with respect to such Superior Proposal, the Company terminates this Agreement in accordance with the provisions of Section 7.1(c)(ii) (Definitive Agreement for Superior Proposal) and pays the applicable Termination Fee pursuant to Section 7.1(c)(ii).
(iii) Prior to the board of directors of the Company effecting a Change of Recommendation or causing the Company to terminate this Agreement for purposes of entering into an Alternative Acquisition Agreement, in each case as permitted under Section 5.5(c)(ii), the Company shall have given Parent (A) at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Alternative Acquisition Proposal shall require a new notice and an additional two (2)-Business Day period) of the Company’s intention to take such action, which shall include a description of the terms and conditions of the Superior Proposal, the identity of the Person making the Superior Proposal and a copy of any proposed definitive agreement(s) relating to such Superior Proposal and (B) an opportunity to liaise with the Company and its outside legal and financial advisors during the foregoing four (4) Business Day period (or subsequent two (2)-Business Day period) to discuss the foregoing Superior Proposal and negotiate in good faith any adjustments or revisions to the terms and conditions of this Agreement proposed by Parent in response thereto, such that such Alternative Acquisition Proposal would no longer constitute a Superior Proposal. In addition, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval, the board of directors of the Company may also effect a Change of Recommendation in response to an Intervening Event if the board of directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the board of directors of the Company to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the board of directors of the Company shall have given Parent and Merger Sub prompt (i) at least four (4) Business Days’ prior written notice advising them of (x) the decision of the Company’s Board intention to effect a Change of Directors Recommendation in response to take such action and the reasons therefor and (y) Intervening Event, which shall include a description in the event the decision relates to an Alternative Transaction Proposal, a summary reasonable detail of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryapplicable Intervening Event, and (Cii) an opportunity to liaise with the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations Company and giving effect to the proposals made by Parent its outside legal and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if financial advisors during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.foregoing four
Appears in 2 contracts
Samples: Merger Agreement (SP Plus Corp), Merger Agreement (SP Plus Corp)
Change of Recommendation. (i) Notwithstanding anything to the contrary contained in Section 5.3(a) or set forth elsewhere in this Agreement Agreement, (x) in response to a Superior Offer, the Board of Directors of the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Company Voting Proposal, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the contrarystockholders of the Company, at any time prior to obtaining may recommend that the stockholders of the Company Stockholder Approvalaccept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Company Change of Recommendation”), (y) in response to an unsolicited Superior Offer, the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (z) in response to an unsolicited Superior Offer, the Company or any of its Subsidiaries may terminate this Agreement in order to enter into a definitive agreement to consummate such Superior Offer and transactions contemplated thereby, in the case of the foregoing clauses (x), (y) and (z), only if all of the following conditions are met:
(A) the applicable Superior Offer has not been withdrawn and continues to be a Superior Offer;
(B) the Board of Directors of the Company has determined in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such the proposed action contemplated by clause (x), (y) and/or (z) above would reasonably be inconsistent with expected to be a breach of its fiduciary duties to the stockholders of the Company under applicable Delaware Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(AC) the stockholders of the Company have not yet approved the Company Voting Proposal;
(D) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Company Change of Recommendation Notice”) at least five (5) Business Days prior to publicly effecting the applicable action contemplated by clause (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and ), (y) and/or (z) above, which shall state expressly (1) that the Company has received the applicable Superior Offer, (2) the most recent terms and conditions of such Superior Offer and the identity of the Person or group making such Superior Offer (and in the event the decision relates Company intends to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested exercise its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b) 7.1(d)(ii), the Company shall provide to Parent a copy of the proposed definitive agreement to be entered into in connection with such Superior Offer), and (c3) that the Company intends to effect the proposed action referenced in clause (x), (By) and/or (z) above in connection with such Superior Offer; and
(E) after delivering the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery Change of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice PeriodRecommendation Notice, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate provides Parent with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement during the five-Business Day period contemplated by the preceding clause (iv), and negotiate in good faith with respect thereto during such five-Business Day period, so that, if applicable, such Alternative Transaction Proposal ceases as would enable the Company to constitute (proceed with its recommendation to stockholders in the judgment favor of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsCompany Voting Proposal without effecting the proposed action referenced in clause (x), a Superior Proposal or, if (y) and/or (z) above.
(ii) In addition and not in limitation of the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryforgoing, and (Cnotwithstanding anything to the contrary contained in Section 5.3(a) or set forth elsewhere in this Agreement, the Company’s Board of Directors shall have of the Company may effect a Company Change of Recommendation for any reason other than the receipt of a Superior Offer only if all of the following conditions are met:
(A) the Board of Directors of the Company has determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and consultation with the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, that the failure to effect the proposed Company Change of Recommendation would reasonably be expected to be a breach of its fiduciary duties to the stockholders of the Company under Delaware Law;
(B) that such revisions are material the stockholders of the Company have not yet approved the Company Voting Proposal;
(it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), C) the Company shall deliver a new written notice have delivered to Parent and a Company Change of Recommendation Notice (which notice shall comply with the requirements of this Section 5.4(dnot itself be a Company Recommendation Change) with respect to such new written notice except that the new Notice Period shall be two at least five (25) Business Days instead of three prior to publicly effecting the proposed, which shall state expressly (31) Business Days that the Company is proposing to effect a Company Recommendation Change, and (2) in the event reason(s) for which the Company’s Board of Directors does not make of the determination referred Company proposes to in clause effect the Company Recommendation Change; and
(CD) after delivering the Company Change of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d)Notice, the procedures referred Company negotiates with Parent in good faith during such five-Business Day period so as to enable the Company to proceed with its recommendation to stockholders in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changefavor of the Company Voting Proposal without making a Company Recommendation Change.
Appears in 2 contracts
Samples: Merger Agreement (Solectron Corp), Merger Agreement (Flextronics International Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining the adoption of this Agreement by the Required Company Stockholders, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (i)(C) of Section 5.2(d) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement/Prospectus pursuant to clause (i)(B) of Section 5.2(d)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would could reasonably be inconsistent with expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice that shall state that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Article VII enter into a binding written agreement concerning an Acquisition Proposal and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement/Prospectus pursuant to clause (i)(B) of Section 5.2(d)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions are met:
(1) A Superior Offer has been made and has not been withdrawn;
(2) This Agreement shall not have been adopted at the Company Stockholders’ Meeting;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent concludes in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation could reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 2 contracts
Samples: Merger Agreement (Medicinova Inc), Merger Agreement (Avigen Inc \De)
Change of Recommendation. Notwithstanding anything in this Agreement to Neither the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors mayof the Company nor any committee thereof shall (i) effect a Change in the Company Recommendation or (ii) approve any letter of intent, if it concludes memorandum of understanding, merger agreement or other agreement relating to, or that may reasonably be expected to lead to, any Takeover Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may effect a Change in the Company Recommendation; provided, that the Board of Directors of the Company determines in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action do so would be reasonably likely to be inconsistent with its the fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of owed by the Company’s 's Board of Directors to take such action and the reasons therefor and shareholders of the Company under applicable Law; provided, further, that the Board of Directors of the Company may effect a Change in the Company Recommendation in response to a Superior Proposal only (i) after the Company provides to Parent a written notice (a "Notice of Superior Proposal") (x) advising Parent that the Board of Directors of the Company has received a Superior Proposal, (y) in specifying the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction such Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) a copy thereof and (c)z) identifying the Person making such Superior Proposal, (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”ii) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent negotiating in good faith (to the extent with Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases as would enable the Company to constitute (proceed with the Company Recommendation without a Change in the judgment of Company Recommendation if and to the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, extent Parent elects to seek to make such adjustments in the terms and conditions of this Agreement so adjustments; provided, however, that Parent shall not be obliged to propose or agree to any such Adverse Recommendation Change is otherwise not necessaryadjustment, and (Ciii) if Parent does not, within the Company’s earlier of (A) five calendar days of Parent's receipt of the Notice of Superior Proposal or (B) three Business Days prior to the scheduled meeting of the shareholders of the Company called for the purpose of obtaining the Company Shareholder Approval, make an offer that the Board of Directors shall have determined of the Company determines in good faith, after considering the results of such negotiations and giving effect faith to be as favorable to the proposals made by Parent and Merger Sub, if any, that Company's shareholders as such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Samples: Merger Agreement (Castlewood Holdings LTD), Merger Agreement (Enstar Group Inc)
Change of Recommendation. (i) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the time, but not after, the Company Stockholder ApprovalRequisite Vote is obtained, if an Acquisition Proposal that did not otherwise result from a material breach of Section 6.1 is received by the Company, and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would constitute a Superior Proposal, the Board of Directors of the Company may, if the Board of Directors of the Company has determined in good faith after consultation with its financial advisor(s) and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ duties under applicable Law, (x) effect a Change of Recommendation and/or (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i) at or prior to the time of such termination (it being agreed that such termination shall not be effective unless such fee is so paid); provided further, that, (A) the Company will not be entitled to make a Change of Recommendation or terminate this Agreement in accordance with Section 8.1(d)(ii) unless (i) the Company delivers to Parent a written notice (such notice, a “Company Notice”) advising Parent that the Company’s Board of Directors mayintends to take such action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action of the Board of Directors of the Company (including the identity of the party making such Superior Proposal and a written summary of any additional material terms and conditions communicated orally), and shall include with such notice unredacted copies of the proposed transaction agreement (if it concludes any) and copies of any other documents evidencing or specifying the terms and conditions of such Acquisition Proposal, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which the Company delivered the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), (B) after giving such Company Notice and prior to taking any action described in clauses (x) or (y) above, the Company shall negotiate in good faith with Parent (to the extent requested by Parent), to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its financial advisors and outside legal advisorscounsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal, if such changes offered in writing by Parent (if any) were to be given effect. Any revision, amendment, update or supplement to the consideration or any other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “two (2) Business Days” and such two (2) Business Day period shall expire at 5:00 p.m. on the second (2nd) Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional two (2) Business Day Notice Period be deemed to shorten the initial four (4) Business Day Notice Period).
(ii) Notwithstanding anything in this Agreement to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, the Board of Directors of the Company may effect a Change of Recommendation if (x) an Intervening Event has occurred, and (y) prior to taking such action, the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel and its financial advisor(s), that failure to take such action in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary the directors’ duties under applicable Law; provided, make an Adverse Recommendation Change; provided however, that prior to any effecting such Adverse Recommendation ChangeChange of Recommendation, (A) the Company shall have given give Parent and Merger Sub prompt written a Company Notice four (4) Business Days in advance, which notice advising them shall include a reasonably detailed description of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)Intervening Event, (B) after giving such Company Notice and prior to effecting a Change of Recommendation, the Company shall have given negotiate in good faith with Parent and Merger Sub three (3) Business Days (to the “Notice Period”) after delivery of each such notice extent requested by Parent), to propose make revisions to the terms of this Agreement and (or make another proposalC) and, during at the end of the Notice Period, prior to and as a condition to effecting a Change of Recommendation, the Board of Directors of the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent take into account in good faith (any changes to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases proposed in writing by Parent in response to constitute (the Company Notice and any other information offered by Parent in response to the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryCompany Notice, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel and its financial advisor(s) that (I) such revisions are material Intervening Event remains in effect and (it being understood that any change II) the failure to effect a Change of Recommendation in the purchase price or form of consideration in response to such Superior Proposal shall Intervening Event would reasonably be deemed a material revision), the Company shall deliver a new written notice expected to Parent and shall comply be inconsistent with the requirements of this Section 5.4(ddirectors’ duties under applicable Law if such changes proposed in writing by Parent (if any) with respect were to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changegiven effect.
Appears in 2 contracts
Samples: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Change of Recommendation. Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, at any time prior to obtaining the time, but not after, the Company Stockholder ApprovalApproval is obtained, the Company’s Company Board may make a Change of Directors mayRecommendation (i) in connection with a Superior Proposal or (ii) in response to an event, occurrence, development or state of facts or circumstances occurring after the Agreement Date that was neither known to, nor reasonably foreseeable by, the Company Board prior to the Agreement Date, in either case of (i) or (ii), if it concludes the Company Board determines in good faith (after consultation with its financial advisors and its outside legal advisorscounsel) that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make and may also terminate this Agreement pursuant to Section 7.1 to enter into an Adverse Recommendation ChangeAlternative Acquisition Agreement with respect to a Superior Proposal; provided provided, however, that prior to any the Company Board shall not take such Adverse Recommendation Change, action unless:
(Ai) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) complied in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided all respects with respect thereto pursuant to its obligations under this Section 5.4, including the information required 5.3(e) (other than immaterial or inadvertent violations not intended to be provided pursuant to Section 5.4(b) and result in an Acquisition Proposal);
(c), (Bii) the Company shall have given provided prior written notice (a “Determination Notice”) to Parent and Merger Sub three at least seventy-two (372) Business Days hours in advance (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement effect that the Company Board intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 5.3(c) with respect to such Superior Proposal;
(or make another proposaliii) and, the Company shall have during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so thatsuch that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, if applicablehowever, such Alternative Transaction Proposal ceases to constitute (that in the judgment event of any material revisions to the Company’s Board terms of Directorssuch Superior Proposal, after consultation the Company shall be required to deliver a new Determination Notice to Parent and to comply with its financial advisors the requirements of Section 5.3(e)(ii) and outside legal advisors), a this Section 5.3(e)(iii) with respect to such new Determination Notice and the revised Superior Proposal orcontemplated thereby;
(iv) at or following the end of such Notice Period, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Company Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and its outside legal advisorscounsel) that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any revisions are material to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (it being understood that any change iii) above); and
(v) in the purchase price or form event of consideration in such a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal shall be deemed a material revision)Proposal, the Company shall deliver a new written notice have validly terminated this Agreement in accordance with Section 7.1 including paying the Company Termination Fee in accordance with Section 7.4(a) prior to Parent and shall comply or concurrently with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changetermination.
Appears in 2 contracts
Samples: Merger Agreement (SolarWinds, Inc.), Merger Agreement (SolarWinds, Inc.)
Change of Recommendation. Except as expressly permitted by this Section 5.3(d), the Company Board shall not, nor shall any committee thereof, directly or indirectly, (i) (A) withdraw or qualify (or amend or modify in a manner adverse to Parent) or publicly propose to withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Company Board or committee thereof of this Agreement, or, subject to the right of the Company Board to make a Company Adverse Recommendation Change in accordance with this Section 5.3(d), fail to include the Company Board’s recommendation that the Company Stockholders approve the adoption of this Agreement in the Proxy Statement when disseminated to the Company Stockholders (and at all times thereafter prior to receipt of the Company Stockholder Approval), (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop-look-and-listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company Board (or any committee thereof) may take no position with respect to an Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to in this clause), (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made public or sent or given to the Company Stockholders (or any Person or Group shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal), it being understood that this clause (D) shall only apply to one (1) such request by Parent per such Alternative Company Transaction Proposal or material modification, as applicable, or (E) resolve, agree or publicly propose to do any of the foregoing (each action or failure to act described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or publicly propose to approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (A) constituting, or providing for, any Alternative Company Transaction Proposal or (B) requiring it (or that would require it) to abandon, terminate or fail to consummate the Merger. Notwithstanding anything to the contrary set forth in this Agreement to the contrarySection 5.3(d), at any time prior to obtaining the Company Stockholder Approval, the Company’s Company Board of Directors may, if it concludes subject to compliance with Section 5.3(e), solely in response to (1) a Company Intervening Event, make a Company Adverse Recommendation Change under subclause (A) or (to the extent related to subclause (A)) (E) of the definition thereof or (2) a Superior Company Proposal that did not result from a breach of Section 5.3(a), make a Company Adverse Recommendation Change, if, in either case, the Company Board determines in good faith (after consultation with its financial advisors and outside legal advisors) counsel and financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 2 contracts
Samples: Merger Agreement (Liberty Expedia Holdings, Inc.), Merger Agreement (Expedia Group, Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.2(b), at any time prior to obtaining the Company Stockholder Approval, the Company’s Board of Directors of the Company may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make a Change of Recommendation and, in the case of a Superior Proposal or an Adverse Recommendation Change; provided that prior Intervening Event after which Parent does not timely deliver a Continuation Notice terminate this Agreement in accordance with Section 8.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(Aii) the Company shall have given (A) delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that the decision Company has received a Superior Proposal or determined the existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given provide to Parent a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith Superior Proposal (to the extent Parent desires not previously delivered or made available to negotiateParent), and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to make amend this Agreement in such adjustments a manner that the Superior Proposal would no longer be a Superior Proposal or, in the terms case of an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s Board of Directors has in good faith determined (after the receipt of advice from and conditions of this Agreement so that, if applicable, such consultation with its outside legal counsel and the Company Financial Advisor) results in the Alternative Transaction Proposal ceases that had been determined to constitute (be a Superior Proposal no longer being a Superior Proposal or, in the judgment case of an Intervening Event, addresses the basis for a Change of Recommendation;
(iv) the Board of Directors of the Company has concluded in good faith, after receipt of advice from and consultation with its outside legal counsel, that, in light of such Superior Proposal or Intervening Event and after considering any adjustments or negotiations pursuant to the preceding clause (ii), that the Company’s Board of Directors, after consultation ’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect fiduciary obligations to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requiredstockholders of the Company under Delaware Law; provided further that, and
(1v) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply have previously complied with the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nuance Communications, Inc.)
Change of Recommendation. (a) Notwithstanding anything in this Agreement Sections 6.1 and 6.7 to the contrary, at any time prior to obtaining the Company receipt of the Stockholder Approval, the Company’s Board may make a Change of Directors mayRecommendation following receipt of an unsolicited bona fide written proposal or offer (an “Offer”), by a Person or group (as defined in Section 13(d) of the Securities Exchange Act), including any amendment or modification to any existing Offer, with respect to an acquisition of beneficial ownership by such Person or group of (i) at least twenty-five percent (25%) of the assets of, equity interests in, or businesses of, the Company (whether pursuant to a single or multi-step transaction or series of related transactions), or (ii) a merger, consolidation, recapitalization or other transaction that results in the issuance, disposition or sale of twenty-five percent (25%) or more of the voting power of the Company (an “Alternative Proposal”), which the Board determines, in the exercise of its fiduciary duties, is a Superior Proposal, in each case, if it concludes the Board has determined in good faith (after consultation with its financial advisors and the Company’s outside legal advisors) counsel that the failure to take such action would be inconsistent with its constitute a breach of the fiduciary duties of the members of the Board under applicable LawDelaware Law and the Company first complies with Section 6.8(b).
(b) Prior to the Company taking any action permitted under Section 6.8(a), make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt provide Purchaser with seven (7) Business Days’ prior written notice (it being understood and agreed that any material amendment to the applicable Alternative Proposal shall require a new notice and an additional five (5) Business Day period) advising them of (x) Purchaser that the decision of the Company’s Board of Directors intends to take such action and providing to Purchaser a notice of such Offer (containing the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material principal terms and conditions of the Alternative Transaction Proposal Offer), and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(bduring such seven (7) and Business Day period (cor subsequent five (5) business day period), (Bi) the Company shall have given Parent negotiate, and Merger Sub three cause its representatives to negotiate, with Purchaser and its representatives in good faith (3to the extent Purchaser wishes to negotiate) Business Days (the “Notice Period”) after delivery of each such notice to enable Purchaser to determine whether to propose revisions to the terms of this Agreement or any other Transaction Document such that such Alternative Proposal would no longer constitute a Superior Proposal, and (or make another proposalii) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent consider in good faith (any proposal by Purchaser to the extent Parent desires to negotiate) to make such adjustments in amend the terms and conditions of this Agreement so that, if applicable, or any other Transaction Document such that such Alternative Transaction Proposal ceases would no longer constitute a Company Superior Proposal.
(c) Nothing contained in this Agreement shall prohibit the Company or the Board from (i) disclosing to constitute (in the judgment of the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or (ii) making any disclosure to its stockholders if the Board of Directors, has reasonably determined in good faith after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering outside legal counsel that the results of such negotiations and giving effect failure to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to do so would constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requiredbreach of the fiduciary duties of the members of the Board under applicable Delaware Law; provided further that, that this Section 6.8(c) shall not permit the Board to make a Change of Recommendation except in compliance with Section 6.8(a) and Section 6.8(b).
(1d) if during the Notice Period described in clause (B) of All information provided to Purchaser under this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal Section 6.8 shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply held in confidence in accordance with the requirements terms of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two NDA Agreement (2) Business Days instead of three (3) Business Days and (2) whether or not then in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(deffect), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Samples: Investment and Securities Purchase Agreement (General Moly, Inc)
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer and release the Person making the Superior Offer from any “standstill” obligation pursuant to agreements between such Person and the Company (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met:
(i) A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn;
(ii) The Shareholders’ Meeting has not occurred;
(iii) The Company shall have (a) delivered to Parent written notice (a “Change of Recommendation Notice”) at least three Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so, (the “Notice Period”b) after delivery provided to Parent a copy of each such notice to propose revisions all written materials delivered to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Offer in connection with Parent in good faith such Superior Offer (to the extent not previously provided to Parent), and (c) made available to Parent desires all materials and information made available to negotiatethe Person or group making the Superior Offer in connection with such Superior Offer;
(iv) During the at least three Business Day period from delivery to Parent of the Change of Recommendation Notice until the effecting of any Change of Recommendation, the Company shall provide Parent with a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatAgreement, if applicableand negotiate in good faith with respect thereto, such Alternative Transaction Proposal ceases as would enable the Company to constitute (in the judgment of the Company’s Board of Directors, after consultation proceed with its financial advisors recommendation to shareholders in favor of approval and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and Approval of the Merger without making a Change is otherwise not necessary, and of Recommendation.
(Cv) the Company’s The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel (which may be O’Melveny & Xxxxx LLP), that, in light of such Superior Offer and after considering any adjustments or negotiations and giving effect pursuant to the proposals made by Parent and Merger Sub, if anypreceding clause (iv), that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) failure of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in fiduciary obligations to the purchase price or form shareholders of consideration in such Superior Proposal shall be deemed a material revision), the Company under applicable law; and
(vi) The Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 1 contract
Samples: Merger Agreement (Tarantella Inc)
Change of Recommendation. (i) Notwithstanding anything Section 5.2(b), in this Agreement response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Verigy or LTX-Credence, as the case may be, may withhold, withdraw, amend, modify, qualify or condition in a manner adverse to the other its recommendation in favor of, in the case of Verigy, the approval of the Share Issuance, the Charter Amendment, and in the case of LTX-Credence, approval of this Agreement, in each case, in a manner adverse to the other party, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its shareholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Shareholders’ Meeting has not occurred;
(2) It shall have (A) provided the Company shall have given Parent and Merger Sub prompt other party hereto with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least five business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (cIII) that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that such notice and such statement shall not constitute a Change of Recommendation), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions provided to the terms other party hereto a copy of this Agreement (all materials and information delivered or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (made available to the extent Parent desires Person or group making the Superior Offer it has received and (C) provided the other party has the opportunity to negotiate) to make such adjustments in the terms meet and conditions discuss a modification of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that the transaction theretofore determined to be a Superior Offer no longer constitutes a Superior Offer;
(3) Either (A) on or before the expiration of the five business day period following the delivery to the other party hereto of any Change of Recommendation Notice, the other party hereto does not make a written offer, which shall be binding and enforceable against the other party and capable of acceptance by Verigy or LTX-Credence, as the case may be (a “Matching Bid”), in response to such Adverse Superior Offer, or (B) following receipt of a Matching Bid within the five business day period following the delivery to the other party hereto of any Change of Recommendation Change is otherwise not necessaryNotice, and (C) the Company’s Board of Directors of Verigy or LTX-Credence, as the case may be, determines in good faith (at a meeting of the Board of Directors of Verigy or LTX-Credence, as the case may be, at which it consults prior to such determination with its outside legal counsel and its financial advisor) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have determined materially breached any of the provisions set forth in Section 5.2 or this Section 5.3 (including Section 5.3(b)) in connection with such Acquisition Proposal.
(ii) In addition, and notwithstanding anything to the contrary set forth herein, at any time prior to obtaining, in the case of the shareholders of Verigy, approval of the Share Issuance, and the Charter Amendment, or in the case of the shareholders of LTX-Credence, the approval of this Agreement, the Board of Directors of LTX-Credence or Verigy, as the case may be, may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after considering the results consultation with its outside legal advisors, that, in light of such negotiations and giving Intervening Event, the failure of such Board of Directors to effect such a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; provided, however, that (A) such party shall send to the proposals made by Parent and Merger Subother party hereto written notice of its intention to effect a Change of Recommendation, if anyspecifying in reasonable detail the reasons therefor, that such Alternative Transaction Proposalat least five business days prior to effecting a Change of Recommendation, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) such party shall provide the other an opportunity to meet and discuss the basis for a Change of Recommendation, the other party’s reaction thereto and any possible modification to the terms and conditions of this paragraph any revisions are made Agreement in response thereto so that the transactions contemplated hereby may be effected and (C) after such discussions, the board of directors of the party proposing to the Superior Proposaltake such action concludes, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall failure to effect a Change of Recommendation would be two reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements.
(2iii) Business Days instead of three (3) Business Days and (2) in Neither the event the Company’s Board of Directors does not of LTX-Credence nor the Board of Directors of Verigy shall make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Samples: Merger Agreement (Verigy Ltd.)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof Parent or the Company, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company or Parent, as the case may be, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if all of the following conditions in clauses (1) through (6) are met:
(1) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(2) In the case of Parent, its stockholders have not approved the Share Issuance, and in good faith the case of the Company, its stockholders have not adopted this Agreement;
(after consultation 3) It shall have provided the other party hereto with written notice of its financial advisors and outside legal advisorsintention to effect a Change of Recommendation (a “Change of Recommendation Notice”) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that at least two business days prior to any such Adverse Recommendation Changeeffecting a Change of Recommendation, which shall state expressly
(A) the Company shall have given Parent and Merger Sub prompt written notice advising them of that it has received a Superior Offer, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that it intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) After delivering the Change of Recommendation Notice, (B) the Company it shall have given Parent and Merger Sub three (3) Business Days (provided the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate other party hereto with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessarytwo business day period, and (C) shall have negotiated in good faith with respect thereto during such two business day period, regarding any changes proposed by the Companyother party for the purpose of enabling such party’s Board of Directors shall have determined to proceed with its recommendation in favor of, in the case of Parent, the Share Issuance, and in the case of the Company, adoption of this Agreement, without effecting a Change of Recommendation;
(5) Its Board of Directors has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior Proposal breach of its fiduciary obligations to its stockholders under applicable Legal Requirements; and
(6) It shall not have breached in any material respect any of the provisions set forth in Section 5.2 or that such Adverse Recommendation Change is otherwise still required; provided further that, this Section 5.3 (1) if during the Notice Period described in including clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revisionSection 5.3(c)(i), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period Superior Offer.
(ii) Other than in connection with an Acquisition Proposal or a Superior Offer (which shall be two (2subject to Section 5.3(d)(i) Business Days instead of three (3) Business Days and (2) not subject to this Section 5.3(d)(ii)), nothing in this Agreement shall prohibit or restrict the event the Company’s Board of Directors does of the Company or Parent, as the case may be, from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that such party shall send to the other party hereto written notice of its intention to effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) The Board of Directors of the Company or Parent, as the case may be, shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Samples: Merger Agreement
Change of Recommendation. (i) From the date hereof until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 8.1, except to the extent permitted by Section 6.1(c)(ii) or Section 6.1(c)(iii), neither the Board of Directors nor any committee thereof shall make a Change of Recommendation.
(ii) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the time, but not after, the Company Stockholder ApprovalRequisite Vote is obtained, if an unsolicited bona fide Acquisition Proposal that did not result from a breach of Section 6.1 is received by the Company’s Company and that has not been withdrawn, and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, then the Board of Directors of the Company may, if it concludes the Board of Directors of the Company has determined in good faith (after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law, make an Adverse (x) effect a Change of Recommendation Changeor (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i); provided that further, that, prior to any taking such Adverse Recommendation Changeaction described in clauses (x) or (y) above, (A) the Company shall have given give Parent and Merger Sub prompt written notice advising them of four (x4) Business Days in advance (such period from the decision time the Company Notice is provided until the end of the Company’s fourth (4th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), which notice shall set forth in writing that the Board of Directors of the Company intends to consider whether to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary including copies of or the material terms and conditions of the Alternative Transaction Acquisition Proposal that is the basis of the proposed action of the Board of Directors of the Company and other information requested to be provided the latest draft of any documentation being negotiated in connection with respect thereto pursuant to this Section 5.4such Acquisition Proposal (such notice, including the information required to be provided pursuant to Section 5.4(b) and (c“Company Notice”), (B) after giving such Company Notice and prior to taking any action described in clauses (x) or (y) above, the Company shall, and shall direct its Representatives to, negotiate in good faith with Parent (to the extent requested by Parent), to enable Parent to propose such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal and the failure to take such action described in clauses (x) or (y) above would be inconsistent with the directors’ fiduciary duties under applicable Law, if such changes proposed in writing by Parent (if any) were to be given Parent effect. Any amendment or revision to the financial terms or other material amendment, revision or supplement to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and Merger Sub this Section 6.1(c)(ii) and require a new Company Notice, except that references in this Section 6.1(c)(ii) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days Days” and such three (3) Business Day period shall expire at end of the “third (3rd) Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional three (3) Business Day Notice Period be deemed to shorten the initial four (4) Business Day Notice Period”).
(iii) Notwithstanding anything in this Agreement to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, other than as provided in Section 6.1(c)(ii), the Board of Directors of the Company may effect a Change of Recommendation if, and only if, (x) an Intervening Event has occurred, and (y) prior to taking such action, the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel and its financial advisor(s), that failure to take such action in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that prior to effecting such Change of Recommendation, (A) the Company shall give Parent a Company Notice four (4) Business Days in advance, which notice shall include a reasonably detailed description of such Intervening Event, (B) after delivery giving such Company Notice and prior to effecting a Change of each such notice Recommendation, the Company shall, and shall direct its Representatives to, negotiate in good faith with Parent (to the extent requested by Parent), to enable Parent to propose revisions to the terms of this Agreement and (or make another proposalC) and, during at the end of the Notice Period, prior to and as a condition to effecting a Change of Recommendation, the Board of Directors of the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent take into account in good faith (any changes to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases proposed in writing by Parent in response to constitute (the Company Notice and any other information offered by Parent in response to the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryCompany Notice, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel and its financial advisor(s) that (I) such revisions are Intervening Event remains in effect and (II) the failure to effect a Change of Recommendation in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law if such changes proposed in writing by Xxxxxx (if any) were to be given effect. Any material change to the facts and circumstances relating to any Intervening Event for purposes of Section 6.1(d) and this Section 6.1(c)(iii) shall require a new Company Notice, except that references in this Section 6.1(c)(iii) to “four (it being understood that any change in the purchase price or form of consideration in such Superior Proposal 4) Business Days” shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect be references to such new written notice except that the new Notice Period shall be two (2) Business Days instead of “three (3) Business Days Days” (it being understood and agreed that in no event shall any such additional three (23) in Business Day Notice Period be deemed to shorten the event the Company’s Board of Directors does not make the determination referred to in clause initial four (C4) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(dBusiness Day Notice Period), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its unanimous recommendation in favor of the Merger and enter into a written agreement memorializing such Superior Proposal, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), only if all of the following conditions in clauses (i) through (viii) are met:
(i) A Superior Offer with respect to it concludes has been made and has not been withdrawn;
(ii) The Stockholders’ Meeting has not occurred;
(iii) The Company shall have (A) provided to Parent written notice which shall state expressly (1) that the Company has received a Superior Offer, (2) the material terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer, and (3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent a copy of all written materials delivered to the Person or group making the Superior Offer in connection with such Superior Offer, and (C) made available to Parent all other materials and information made available to the Person or group making the Superior Offer in connection with such Superior Offer;
(iv) The Board of Directors of the Company has concluded in good faith, after receipt of advice of its outside legal counsel, that, in light of such Superior Offer, the failure of the Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable law;
(v) The Company shall not have breached any of the provisions set forth in Section 5.2 or this Section 5.3;
(vi) At least two (2) business days shall have elapsed from the provision by the Company to Parent of the information specified in Section 5.3(d)(iii);
(vii) During the two (2) business day period specified in Section 5.3(d)(vi), the Company negotiates with Parent in good faith with respect to adjustments to the terms and conditions of this Agreement that Parent may suggest during such period; and
(viii) During or following the two (2) business day period specified in Section 5.3(d)(vi), the Board of Directors of the Company does not conclude in good faith (after consultation with its financial advisors and outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent counsel and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorsadvisor) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Acquisition Proposal no longer constitutes a Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeOffer.
Appears in 1 contract
Samples: Merger Agreement (Coherent Inc)
Change of Recommendation. Notwithstanding anything to the contrary contained in Section 6.3(a), (x) the board of directors of the Company may withhold, withdraw, amend or modify its Recommendation, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the board of directors of the Company or a committee thereof, a "Change of Recommendation"), (y) the board of directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, and (z) the Company may, after payment of the Termination Fee pursuant to Section 8.3(b), terminate this Agreement pursuant to Section 8.1(h) and the contraryCompany or any of its Subsidiaries may concurrently with such termination execute or enter into a binding definitive agreement with respect to a Superior Offer, at any time if and only if, prior to obtaining any such action described in clauses (x), (y) and (z) hereof, all of the following conditions in clauses (i) through (vi) are met:
(i) the board of directors of the Company Stockholder Approval, the Company’s Board of Directors may, if it concludes determines in good faith (faith, after consultation with its the Company's financial advisors and outside legal advisors) counsel, that the failure to take such action would it may be inconsistent with required by its fiduciary duties under to do so;
(ii) the shareholders of the Company have not approved this Agreement in accordance with applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a "Change of Recommendation Notice") at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A), if applicable, that the decision of Company has received a Superior Offer, the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)identity of the Person or group making the Superior Offer, (B) that the Company intends to effect a Change of Recommendation and (C) if applicable, that the Company intends to terminate this Agreement pursuant to Section 8.1(h);
(iv) after delivering the Change of Recommendation Notice, the Company shall have given (A) provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five (5) Business Day period and (B) negotiate in good faith with respect thereto during such five (5) Business Day period, if applicable, such Alternative Transaction Proposal ceases in each case as would enable the Company to constitute proceed with the Recommendation without making a Change of Recommendation;
(in v) the judgment board of directors of the Company’s Board Company shall have determined after considering the terms of Directorsthe Merger (as they may be adjusted pursuant to paragraph (iv) above), after consultation with its the Company's financial advisors advisor and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anycounsel, that such Alternative Transaction Proposal, if applicable, continues it is required by its fiduciary duties to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still requireddo so; provided further that, and
(1vi) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached any of the requirements of provisions set forth in Section 6.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.3.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five- (5) Business Day period, if applicableand negotiate in good faith with respect thereto during such five- (5) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) stockholders of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with than the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall Merger (taking into account as it may be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change adjusted pursuant to this Section 5.4(d), the procedures referred to in clauses paragraph (A), (Biv) above) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.Table of Contents
Appears in 1 contract
Samples: Merger Agreement (Cybersource Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iii) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement pursuant to clause (ii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be inconsistent with expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Section 7.1(i), enter into a binding written agreement concerning an Acquisition Proposal, and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement pursuant to clause (ii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent has concluded in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 1 contract
Samples: Merger Agreement (Pharmacopeia Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least three Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such three-Business Day period, if applicableand negotiate in good faith with respect thereto during such three-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached in any material respect any of the requirements of provisions set forth in Section 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.3.
Appears in 1 contract
Samples: Merger Agreement (Intellisync Corp)
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof LTX or Credence, as the case may be, may withhold, withdraw, amend or modify its recommendation in favor of, in the case of LTX, the Share Issuance and the Charter Amendment, and in the case of Credence, adoption of this Agreement, in each case, in a manner adverse to the other party, and in the case of a Superior Offer that is a tender or exchange offer, recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (5) are met:
(1) Its Stockholders’ Meeting has not occurred;
(2) It shall have (A) provided the Company shall have given Parent and Merger Sub prompt other party hereto with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) the decision at least three business days prior to effecting a Change of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision Recommendation that relates to an Alternative Transaction Proposal(i) a Superior Offer or (ii) any material change to the terms of a Superior Offer to which a previous Change of Recommendation Notice applies, which shall state expressly (I) that it has received a summary of Superior Offer, (II) the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)III) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, and (B) provided to the Company shall have given Parent other party hereto a copy of all materials and Merger Sub three information delivered or made available to the Person or group making the Superior Offer it has received;
(3) Business Days Either (A) on or before the “Notice Period”) after expiration of the three business day period following the delivery of each such notice to propose revisions to the terms other party hereto of this Agreement (or make another proposal) and, during the Notice Periodany Change of Recommendation Notice, the Company shallother party hereto does not make a written offer, which shall be binding and shall direct its financial advisors enforceable against the other party and outside legal advisors tocapable of acceptance by LTX or Credence, negotiate with Parent as the case may be (a “Matching Bid”), in response to such Superior Offer, or (B) following receipt of a Matching Bid within the three business day period following the delivery to the other party hereto of any Change of Recommendation Notice, the Board of Directors of LTX or Credence, as the case may be, determines in good faith (at a meeting of the Board of Directors of LTX or Credence, as the case may be, at which it consults prior to such determination with its outside legal counsel and its financial advisor) that after taking into account the Matching Bid, that the Superior Offer to which the Change of Recommendation Notice applies continues to be a Superior Offer;
(4) Its Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Offer and after taking into consideration the Matching Bid, if any, the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Legal Requirements; and
(5) It shall not have materially breached any of the provisions set forth in Section 5.2 or this Section 5.3 (including Section 5.3(b)).
(ii) In addition, and notwithstanding anything to the extent Parent desires contrary set forth herein, at any time prior to negotiate) to make such adjustments obtaining, in the terms case of the stockholders of LTX, approval of the Share Issuance and conditions the Charter Amendment, or in the case of the stockholders of Credence, the adoption of this Agreement so thatAgreement, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of DirectorsDirectors of Credence or LTX, as the case may be, may, in response to a material development or change in circumstances occurring, arising or coming to the attention of such Board of Directors after the date hereof that was neither known to the Board of Director of such party nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Change of Recommendation if such Board of Directors has concluded in good faith, after consultation with its financial advisors and outside legal advisors), a Superior Proposal orthat, if in light of such Intervening Event, the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make failure of such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined to effect such a Change of Recommendation would be reasonably likely to result in good faitha breach of its fiduciary duties under applicable Legal Requirements; provided, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if anyhowever, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made party shall send to the Superior Proposalother party hereto written notice of its intention to effect a Change of Recommendation, if applicablespecifying in reasonable detail the reasons therefor, and at least three business days prior to effecting a Change of Recommendation.
(iii) Neither the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in of Credence nor the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not of LTX shall make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement Subject to the contraryprovisions of Section 5.5 and this Section 5.1, at any time in response to the receipt of a Superior Proposal prior to obtaining the Company Stockholder Stockholders’ Approval, (x) the Company Board or a committee thereof may withhold, withdraw, amend or modify the Company Board Recommendation in favor of the Merger, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to the Company Stockholders, may recommend that the Company Stockholders accept the tender or exchange offer, or (y) the Company Board may approve, endorse, or recommend any Superior Proposal (any of the foregoing actions in clauses (x) and (y), an “Alternative Transaction Recommendation”), if all of the following conditions in clauses (i) through (viii) are met:
(i) Company shall have delivered to Parent written notice at least 48 hours prior to any meeting of the Company Board or a committee thereof at which the Company Board or committee is reasonably expected to consider declaring a Superior Proposal or effecting an Alternative Transaction Recommendation;
(ii) the Company Board determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Proposal has been made and not withdrawn;
(iii) that the failure Company Stockholders have not approved this Agreement in accordance with Applicable Laws;
(iv) Company shall have delivered to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Parent written notice (a “Change of Recommendation Change; provided that Notice”) at least five business days prior to any publicly effecting such Adverse Alternative Transaction Recommendation Change, which shall state expressly (A) the that Company shall have given Parent and Merger Sub prompt written notice advising them of has received a Superior Proposal, (xB) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Superior Proposal, (C) the identity of the Person or group making the Superior Proposal and (D) that Company intends to effect an Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4Recommendation;
(v) after delivering the Change of Recommendation Notice, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent with Parent desires to negotiate) and provide Parent with a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so that, if applicable, during such five business day period such that the Acquisition Proposal would no longer constitute a Superior Proposal and the Company Board could proceed with its recommendation to the Company Stockholders in favor of adoption of this Agreement without making an Alternative Transaction Proposal ceases to constitute Recommendation;
(in vi) the judgment of the Company’s Company Board of Directors, shall have determined (A) after consultation with its financial advisors advisor, that the terms of the Superior Proposal are more favorable to the Company Stockholders than the terms of the Merger (as it may be adjusted pursuant to paragraph (v) above) and (B) after consultation with outside legal advisors)counsel, a Superior Proposal or, if the Adverse Recommendation Change does not involve that an Alternative Transaction Proposal, Recommendation is necessary for the Company Board to make such adjustments comply with its fiduciary duties to Company and the Company Stockholders under Applicable Laws;
(vii) Company shall not have breached any of the provisions set forth in Section 5.5 or this Section 5.1; and
(viii) Company shall have used all commercially reasonable efforts to mail the terms and conditions Proxy Statement/Prospectus to the Company Stockholders as promptly as practicable after the date of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeAgreement.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the shareholders of the Company, may recommend that the shareholders of the Company accept the tender or exchange offer and release the Person making the Superior Offer from any "standstill" obligation pursuant to agreements between such Person and the Company (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a "Change of Recommendation"), if it concludes all of the following conditions in good faith clauses (after consultation i) through (v) are met: A Superior Offer with its financial advisors respect to the Company has been made and outside legal advisorshas not been withdrawn or matched by Parent; The Shareholders' Meeting has not occurred; The Company shall have (a) delivered to Parent written notice (a "Change of Recommendation Notice") at least two Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Offer, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days that the Company may effect a Change of Recommendation and the manner in which it may do so, (the “Notice Period”b) after delivery provided to Parent a copy of each such notice to propose revisions all written materials delivered to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate Superior Offer in connection with Parent in good faith such Superior Offer (to the extent Parent desires not previously provided to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisorsParent), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (Cc) made available to Parent all materials and information made available to the Company’s Person or group making the Superior Offer in connection with such Superior Offer; and The Board of Directors shall have determined of the Company has concluded in good faith, after considering the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving effect to Superior Offer, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation to effect a Change of Recommendation could reasonably be determined to be inconsistent with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in fiduciary obligations to the purchase price or form shareholders of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeunder applicable law.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to Following the contrary, at any time prior to obtaining receipt of an unsolicited Takeover Proposal received by the Company Stockholder Approvalon or before the Initial Proposal Deadline that as of the Final Change Deadline is a Superior Proposal, the Company’s Board of Directors (or a committee thereof) may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that on or before the failure to take such action would be inconsistent with its fiduciary duties under applicable LawFinal Change Deadline, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) cause the Company shall have given Parent to terminate this Agreement pursuant to Section 8.01(d)(i) and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors enter into or seek to take such action and the reasons therefor and enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (y) in the event case of a Superior Proposal that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the decision relates tender or exchange offer (any such termination, whether caused by the Board of Directors or a committee thereof, and actions described under clause (x) or (y) above, a "Change of Recommendation"), if all of the following conditions in clauses (i) through (iv) are met:
(i) the Superior Proposal has been made and has not been withdrawn and continues to an Alternative Transaction be a Superior Proposal;
(ii) the Company has (A) provided to Parent five (5) Business Days' prior written notice (a "Change of Recommendation Notice") which shall state expressly (x) that it has received a Superior Proposal, a summary of (y) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c)z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have "matched" such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel and financial advisor);
(iii) the Company shall have given paid to Parent the Termination Fee and Merger Sub three Expenses referred to in Section 6.05 if required by this Agreement; and
(3iv) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent have complied with this paragraph (d) and shall comply with not have breached in any material respect any of the requirements of other provisions set forth in this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change5.02.
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Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 8.1(a), at any time prior in response to obtaining the receipt of a Superior Proposal (i) the Company Stockholder ApprovalBoard may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to the Shareholders, may recommend that the Shareholders accept the tender or exchange offer (ii) the Company Board, the Company or any other Acquired Company may approve, endorse, or recommend any Superior Proposal, or (iii) the Company or any other Acquired Company may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Proposal or transaction contemplated thereby (any of the foregoing actions set forth in (i), (ii) or (iii), whether by the Company Board or a committee thereof, a “Change of Recommendation”), if all of the following conditions are met:
i. the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel that a Superior Proposal has been made and not withdrawn;
ii. the Shareholders have not approved this Agreement in accordance with applicable Legal Requirements;
iii. the Company shall have delivered to Merger Corp written notice at least five (5) Business Days prior to publicly effecting such Change of Recommendation which states expressly (1) that the Company has received a Superior Proposal, (2) the final terms and conditions of the Superior Proposal and the identity of the Person or group making the Superior Proposal, and (3) that the Company intends to effect a Change of Recommendation; and
iv. the Company Board of Directors may, if it concludes in good faith shall have determined (1) after consultation with its financial advisors advisor, that the terms of the Superior Proposal are more favorable to the Shareholders of the Company than the Merger and (2) after consultation with outside legal advisors) that counsel, the failure to take effect a Change of Recommendation could reasonably result in a breach of the Company Board’s fiduciary duties to the Shareholders under applicable Legal Requirements. In addition, the Company Board may withdraw, modify or fail to make, in a manner adverse to Merger Corp, the recommendation of the Company Board in favor of the adoption and approval of this Agreement and the approval of the Merger in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of this Agreement (an “Intervening Event”), if the Company Board determines in good faith after consultation with outside legal counsel, that in light of such action would be inconsistent with Intervening Event, the failure of the Company Board to effect such a change of recommendation could reasonably result in a breach of its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeLegal Requirements.
Appears in 1 contract
Samples: Merger Agreement (National Investment Managers Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contraryforegoing, at any time prior to obtaining approval of any of the Shareholder Proposals and subject to prior compliance with Section 3.2(b), the Board of Directors may make a Company Stockholder Approval, Adverse Recommendation Change if:
(i) an unsolicited Competing Transaction that the Board of Directors reasonably determines (after consultation with the Company’s outside counsel and financial advisors) constitutes a Superior Competing Transaction was made after the date hereof and not withdrawn;
(ii) the Board of Directors may, if it concludes determines in good faith (after consultation with its financial advisors and taking into account advice of outside legal advisorscounsel) that that, in light of such Superior Competing Transaction, the failure making of a Company Adverse Recommendation Change or termination of this Agreement is required in order for the Company Board of Directors to take such action would be inconsistent comply with its fiduciary duties obligations to the Company’s shareholders under applicable Law;
(iii) neither the Company, make an Adverse Recommendation Changethe Company Subsidiaries nor any of their respective Representatives shall have violated any of the restrictions set forth in this Section 3.2 in any material respect; provided that prior to any such Adverse Recommendation Change, and
(Aiv) the Company shall have given Parent and Merger Sub prompt delivers written notice to the Investor (a “Notice of Superior Competing Transaction”) advising them of (x) the decision of Investor that the Company’s Board of Directors intends to take such action and specifying the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposaltherefor, a summary of including the material terms and conditions of any Superior Competing Transaction that is the Alternative basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Competing Transaction Proposal shall require a new Notice of Superior Competing Transaction and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(ba new five (5) and (cBusiness Day period), and after the fifth (B) the Company shall have given Parent and Merger Sub three (35th) Business Days (the “Notice Period”) after Day following delivery of each such notice to propose revisions the Notice of Superior Competing Transaction to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, Investor and shall direct its financial advisors and outside legal advisors to, negotiate with Parent after negotiating in good faith (to with the extent Parent desires to negotiate) Investor during such period to make such adjustments in to the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases as would enable the Company to constitute (in proceed with the judgment Investment and the other transactions contemplated hereby and taking into account any revised proposal made by the Investor since receipt of the Company’s Board Notice of DirectorsSuperior Competing Transaction, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined continues to determine in good faith, after considering faith that the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Competing Transaction Proposal, if applicable, continues to constitute constitutes a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeCompeting Transaction.
Appears in 1 contract
Samples: Investment Agreement (First Federal Bancshares of Arkansas Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 5.6(b), at any time prior to obtaining the Company Seller Stockholder Approval, the Company’s Board of Directors of Seller may, if it concludes solely in good faith (after consultation with its financial advisors and outside legal advisors) that the failure response to take such action would be inconsistent with its fiduciary duties under applicable Lawa Superior Proposal or an Intervening Event, make an Adverse a Change of Recommendation Change; provided that prior or terminate this Agreement in accordance with Section 7.1, if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to any such Adverse Recommendation Change, be a Superior Proposal;
(ii) Seller shall have (A) the Company shall have given Parent and Merger Sub prompt delivered to Buyer written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal or an Intervening Event (and, if applicable, of its intention to terminate this Agreement in response to a Superior Proposal) which shall state expressly (1) that Seller has received a Superior Proposal or determined the decision existence of the Company’s Board of Directors to take such action and the reasons therefor and an Intervening Event, (y2) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Proposal or, including in the information required to be provided pursuant to Section 5.4(b) case of an Intervening Event, describe in reasonable detail the cause and factors constituting such Intervening Event, and (c), 3) that Seller intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) the Company shall have given Parent provide to Buyer a copy of all materials and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions information delivered or made available to the terms of this Agreement (Person or make another proposal) and, during group making the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith Superior Proposal (to the extent Parent desires not previously delivered or made available to negotiateBuyer) in accordance with Section 5.7(c)(i); and (C) during the aforementioned five (5) Business Day period, if requested by Buyer, engaged in good faith negotiations to make such adjustments in the terms and conditions of amend this Agreement so that, if applicable, in such Alternative Transaction a manner that the Superior Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), would no longer be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions case of this Agreement so an Intervening Event, obviates the need for a Change of Recommendation;
(iii) Buyer shall not have, within the aforementioned five (5) Business Day period, made an offer that such Adverse Recommendation Change is otherwise not necessary, and (C) the CompanySeller’s Board of Directors shall have has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and the Seller Financial Advisor) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal or, in the case of an Intervening Event, addresses the basis for a Change of Recommendation;
(iv) the Board of Directors of Seller has concluded in good faith, after considering the results receipt of advice from and consultation with its outside legal counsel, that, in light of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during Intervening Event and after considering any adjustments or negotiations pursuant to the Notice Period described in preceding clause (B) of this paragraph any revisions are made to the Superior Proposalii), if applicable, and the Companythat Seller’s Board of Directors in its good faith judgment determines (after consultation Directors’ failure to effect a Change of Recommendation would be inconsistent with its financial advisors and outside legal advisorsfiduciary obligations to the stockholders of Seller under Delaware Law; and
(v) that such revisions are Seller shall have previously complied in all material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply respects with the requirements of provisions set forth in this Section 5.4(d5.7(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeAlternative Transaction Proposal.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in SECTION 5.2(b) or SECTION 5.3, at any time prior in response to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, (x) the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a "CHANGE OF RECOMMENDATION"), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if it concludes all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith (faith, after consultation with its the Company's financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, law;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a "CHANGE OF RECOMMENDATION NOTICE") at least four Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (xA) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such four-Business Day period, if applicableand negotiate in good faith with respect thereto during such four-Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors and outside legal advisors)advisor, a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in that the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect Superior Offer are more favorable to the proposals made by Parent stockholders of the Company than the Merger (as it may be adjusted pursuant to paragraph (iv) above) and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisorscounsel, the failure to effect a Change of Recommendation could reasonably be expected to result in a breach of the Board of Directors' fiduciary duties to the stockholders of the Company under applicable law; and
(vi) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with not have breached in any material respect any of the requirements of provisions set forth in SECTION 5.2 or this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeSECTION 5.3.
Appears in 1 contract
Samples: Merger Agreement (Loudeye Corp)
Change of Recommendation. Notwithstanding anything in this Agreement contained herein to the contrary, at any time prior to obtaining such time as the Company Required Stockholder ApprovalApprovals have been obtained, in response to the receipt of a Superior Offer, the Company’s Board of Directors of the Company may, subject to the further provisions of this Section 5.3(d), (i) withhold, withdraw, amend or modify its recommendation in favor of the Company Proposals and (ii) terminate this Agreement (any of the actions described in clauses (i) and (ii), a “Permitted Fiduciary Action”), if it concludes (in good faith the case of clause (after consultation with its financial advisors and outside legal advisorsi) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, or (ii)) (A) the Company shall have given Parent Superior Offer has been made and Merger Sub prompt written notice advising them of has not been withdrawn and continues to be a Superior Offer, (xB) the decision Board of Directors of the Company’s Company has concluded in good faith, after receipt of advice of outside legal counsel, that, in light of such Superior Offer, the failure of the Board of Directors to take such action and Permitted Fiduciary Action is reasonably likely to result in a breach of its fiduciary obligations to the reasons therefor stockholders of the Company under applicable law and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (BC) the Company shall have complied in all material respects with subsections (a), (b) and (c) of this Section 5.3; provided, that, in addition to the foregoing requirements of this Section 5.3(d), the Company may take such Permitted Fiduciary Action only if (x) it has first given Parent at least three full business days (calculated as provided in Section 5.3(c)) prior written notice that it is prepared to take such Permitted Fiduciary Action and Merger Sub (y) during such three (3) Business Days (business day period, if Parent so requests, the “Notice Period”) after delivery Company negotiates with Parent in good faith concerning a possible amendment of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during and the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (Merger which could cause such Superior Offer to the extent Parent desires cease to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeOffer.
Appears in 1 contract
Samples: Merger Agreement (Green Mountain Coffee Roasters Inc)
Change of Recommendation. Notwithstanding anything The Company Board or any committee thereof shall not withhold, withdraw, amend or modify in this Agreement a manner adverse to Parent its recommendation to the contrary, at any time prior to obtaining Company's shareholders in favor of the Company Stockholder Approval, Shareholder Approval for any reason (a "Change of Recommendation") unless:
(i) the Company’s Board of Directors may, if it concludes Company Shareholder Approval has not yet been obtained;
(ii) a Superior Offer is made to the Company that is not withdrawn and is determined in good faith (after consultation with its financial advisors and outside legal advisors) that by the failure to take such action would be inconsistent with its fiduciary duties under applicable LawCompany Board, make an Adverse Recommendation Change; provided that immediately prior to any adopting a resolution to effect a Change of Recommendation, to be a Superior Offer;
(iii) such Adverse Recommendation Change, Superior Offer shall not have arisen from a material breach of the solicitation restrictions set forth in Section 5.3(a) or was not otherwise submitted as a result of a violation of Section 5.3(a);
(Aiv) the Company shall have given provided to Parent and Merger Sub prompt twenty-four (24) hours prior written notice advising them (a "Section 5.3(d) Notice") of (x) the decision any meeting of the Company’s Company Board at which the Company Board intends to consider effecting a Change of Directors Recommendation in response to take an Acquisition Proposal, together with a copy of the draft definitive written agreement relating to such action Acquisition Proposal and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary identity of the material terms and conditions of Person or Group making such Acquisition Proposal;
(v) during the Alternative Transaction Proposal and other information twenty-four (24) hour period referred to in subclause (iv) above, if requested to be provided with respect thereto pursuant to this Section 5.4by Parent, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent engaged in good faith (negotiations with Parent to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of amend this Agreement so that, if applicable, in such Alternative Transaction a manner that the Acquisition Proposal ceases referred to constitute in subclause (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), iv) above shall not be a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material Offer (it being understood that any change in, or addition of, material terms or conditions set forth in the purchase price or form draft definitive agreement relating to the Acquisition Proposal referred to in subclause (iv) above shall require a new Section 5.3(d) Notice to Parent and a new twenty-four (24) hour period under this subclause (v)); and
(vi) the Company Board has concluded in its good faith, reasonable judgment, after consultation with its outside legal counsel, that, in light of consideration in such Superior Proposal shall Offer (respecting which the Company has been provided a Section 5.3(d) Notice), that the failure of the Company Board to effect a Change of Recommendation would reasonably be deemed expected to result in a material revision)breach of its fiduciary duties to the Company's shareholders under applicable Legal Requirements. In addition, and notwithstanding any provision to the contrary in this Section 5.3, at any time prior to the time the Company Shareholder Approval has been obtained, the Company shall deliver Board may, in response to a new written notice material development or change in material circumstances occurring or arising after the Agreement Date, the existence and material consequences of which were neither known nor reasonably foreseeable by the Company Board at or prior to Parent the Agreement Date (and shall comply not relating to any Acquisition Proposal) (such material development or change in circumstances, an "Intervening Event"), make a Change of Recommendation if the Company Board has in good faith determined, after consultation with its outside legal counsel, that, in light of such Intervening Event, the requirements failure of this Section 5.4(d) with respect the Company Board to effect such new written notice except that the new Notice Period shall a Change of Recommendation would reasonably be two (2) Business Days instead expected to result in a breach of three (3) Business Days and (2) in the event its fiduciary duties to the Company’s 's shareholders under applicable Legal Requirements; provided that, the Company Board of Directors does shall not make the determination referred be entitled to in clause (C) of this paragraph but thereafter determines exercise its right to make an Adverse a Change of Recommendation Change pursuant to this Section 5.4(d), sentence unless the procedures referred Company has (x) provided to Parent at least three Business Days' prior written notice (unless the Intervening Event arises fewer than three Business Days prior to the Company Shareholders Meeting in clauses (A), (Bwhich case such notice shall be given as promptly as practicable) advising Parent that the Company Board intends to take such action and specifying the reasons therefor in reasonable detail and (Cy) above shall apply anew and shall also apply during such three Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to any subsequent withdrawal, amendment or changeamend this Agreement in such a manner that obviates the need for a Change of Recommendation as a result of the Intervening Event.
Appears in 1 contract
Samples: Merger Agreement (Synplicity Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to Following the contrary, at any time prior to obtaining receipt of a Takeover Proposal received by the Company Stockholder Approvalon or before the Initial Proposal Deadline that as of the Final Change Deadline is a Superior Proposal, the Company’s Board of Directors (or a committee thereof) may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisors) that on or before the failure to take such action would be inconsistent with its fiduciary duties under applicable LawFinal Change Deadline, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) cause the Company shall have given Parent to terminate this Agreement pursuant to Section 7.1(c)(i) and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors enter into or seek to take such action and the reasons therefor and enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (y) in the event case of a Superior Proposal that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the decision relates tender or exchange offer (any such termination, whether caused by the Board of Directors or a committee thereof, and actions described under clause (x) or (y) above, a “Change of Recommendation”), if all of the following conditions in clauses (i) through (iv) are met:
(i) the Superior Proposal has been made and has not been withdrawn and continues to an Alternative Transaction be a Superior Proposal;
(ii) the Company has (A) provided to Parent five (5) Business Days’ prior written notice which shall state expressly (x) that it has received a Superior Proposal, a summary of (y) the material terms and conditions of the Alternative Transaction Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person making the Superior Proposal, including the information required to be provided pursuant to Section 5.4(b) and (c)z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) made available to Parent all materials and information made available to the Person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have “matched” such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel and financial advisor);
(iii) the Company shall have given Parent and Merger Sub three (3complied with Section 5.2(c) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent not have breached in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment any material respect any of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments other provisions set forth in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and Section 5.2; and
(Civ) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice have paid to Parent and shall comply with the requirements of this termination fee set forth in Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d7.2(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything (i) Except as otherwise provided in this Agreement Agreement, including this Section 5.5(e), the board of directors of the Company shall not (i) withdraw (or qualify, amend or modify in any manner adverse to Parent), or propose publicly to withdraw (or qualify, amend or modify in any manner adverse to Parent), the Company Recommendation or (ii) approve, recommend or declare advisable any Alternative Acquisition Proposal (any such action in clause (i) or (ii), a “Change of Recommendation”).
(ii) Notwithstanding the foregoing or anything to the contrarycontrary set forth in this Agreement, including Section 5.5(e)(i), at any time prior to obtaining the Company Requisite Stockholder Approval, the board of directors of the Company may (A) effect a Change of Recommendation following a bona fide written Alternative Acquisition Proposal that did not result from or arise out of a breach of this Section 5.5 and which the Company’s Board board of Directors maydirectors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, in each case, if it concludes and only if, the Company’s board of directors has determined in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would be inconsistent with the fiduciary duties required of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(e)(iii) or (B) following receipt of a bona fide written Alternative Acquisition Proposal which the Company’s board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (an “Alternative Acquisition Agreement”) with respect to such Superior Proposal, if, and only if, the Company’s board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(e)(iii) and, concurrently with entering into an Alternative Acquisition Agreement with respect to such Superior Proposal, the Company terminates this Agreement in accordance with the provisions of Section 7.1(c)(ii) (Definitive Agreement for Superior Proposal) and pays the applicable Termination Fee pursuant to Section 7.1(c)(ii).
(iii) Prior to the board of directors of the Company effecting a Change of Recommendation or causing the Company to terminate this Agreement for purposes of entering into an Alternative Acquisition Agreement, in each case as permitted under Section 5.5(e)(ii), the Company shall have given Parent (A) at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Alternative Acquisition Proposal shall require a new notice and an additional two (2) Business Day period) of the Company’s intention to take such action, which shall include a description of the terms and conditions of the Superior Proposal, the identity of the Person making the Superior Proposal and a copy of any proposed definitive agreement(s) relating to such Superior Proposal and (B) an opportunity to liaise with the Company and its outside legal and financial advisors during the foregoing four (4) Business Day period (or subsequent two (2) Business Day period) to discuss the foregoing Superior Proposal and negotiate in good faith any adjustments or revisions to the terms and conditions of this Agreement proposed by Parent in response thereto, such that such Alternative Acquisition Proposal would no longer constitute a Superior Proposal. In addition, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval, the board of directors of the Company may also effect a Change of Recommendation in response to an Intervening Event if the board of directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the board of directors of the Company to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the board of directors of the Company shall have given Parent and Merger Sub prompt (i) at least five (5) Business Days’ prior written notice advising them of (x) the decision of the Company’s Board intention to effect a Change of Directors Recommendation in response to take such action and Intervening Event, which shall include a description in reasonable detail of the reasons therefor applicable Intervening Event, and (yii) in the event the decision relates an opportunity to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided liaise with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, its outside legal and financial advisors during the Notice Period, foregoing five (5)-Business Day period to discuss the Company shall, foregoing Intervening Event and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (any adjustments or revisions to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicableproposed by Parent in response thereto, such Alternative Transaction Proposal ceases that the failure to constitute (in effect a Change of Recommendation would no longer be inconsistent with the judgment fiduciary duties of the Company’s Board board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changedirectors under applicable Law.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Sections 4.2(a), at any time prior 4.2(b) or 4.2(c), in response to obtaining the Company Stockholder Approvalreceipt of a Superior Offer, (i) the Company’s Board of Directors mayof the Receiving Constituent Company may withhold, withdraw, amend or modify its recommendation in favor of the adoption and approval of this Agreement and the transactions contemplated hereby, and, may recommend in favor of a Superior Offer, and in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of such Receiving Constituent Company, may recommend that the stockholders of such Receiving Constituent Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of such Receiving Constituent Company or a committee thereof, a “Change of Recommendation”), (ii) such Receiving Constituent Company or its subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend a Superior Offer, or (iii) such Receiving Constituent Company or any of its subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if it concludes all of the following conditions in good faith clauses (after consultation with its financial advisors and outside legal advisorsA) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, through (E) are met:
(A) the Board of Directors of such Receiving Constituent Company determines in good faith, after consultation with such Receiving Constituent Company’s financial advisor, if any, and outside legal counsel, that a Superior Offer has been made and not withdrawn;
(B) the stockholders of such Receiving Constituent Company have not previously adopted and approved this Agreement and the transactions contemplated hereby in accordance with applicable law;
(C) such Receiving Constituent Company shall have given Parent and Merger Sub prompt delivered to the other Constituent Companies written notice advising them (a “Change of Recommendation Notice”) at least four (4) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (w) that such Receiving Constituent Company has received a Superior Offer; (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material most recent terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested the identity of the Person or group making the Superior Offer (and in the event such Receiving Constituent Company exercises its right to be provided with respect thereto pursuant to terminate this Section 5.4, including the information required to be provided Agreement pursuant to Section 5.4(b) and (c6.1(c), (B) the such Receiving Constituent Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions provide to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment other Constituent Companies a copy of the Company’s Board of Directors, after consultation final agreement to be entered into in connection with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines Offer); (after consultation with its financial advisors and outside legal advisorsy) that such revisions are material (it being understood that any change in the purchase price or form Receiving Constituent Company intends to effect a Change of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Recommendation; and (2z) in that such Receiving Constituent Company agrees to reimburse the event expenses of the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this other Constituent Companies as contemplated under Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.6.2;
Appears in 1 contract
Change of Recommendation. Notwithstanding anything (i) Except as otherwise provided in this Agreement Agreement, including this Section 5.5(e), the board of directors of the Company shall not (i) withdraw (or qualify, amend or modify in any manner adverse to Parent), or propose publicly to withdraw (or qualify, amend or modify in any manner adverse to Parent), the Company Recommendation or (ii) approve, recommend or declare advisable any Alternative Acquisition Proposal (any such action in clause (i) or (ii), a “Change of Recommendation”).
(ii) Notwithstanding the foregoing or anything to the contrarycontrary set forth in this Agreement, including Section 5.5(e)(i), at any time prior to obtaining the Company Requisite Stockholder Approval, the board of directors of the Company may (A) effect a Change of Recommendation following a bona fide written Alternative Acquisition Proposal that did not result from or arise out of a breach of this Section 5.5 and which the Company’s Board board of Directors maydirectors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, in each case, if it concludes and only if, the Company’s board of directors has determined in good faith (faith, after consultation with its financial advisors and outside legal advisors) counsel, that the failure to take such action would be inconsistent with the fiduciary duties required of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(e)(iii) or (B) following receipt of a bona fide written Alternative Acquisition Proposal which the Company’s board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (an “Alternative Acquisition Agreement”) with respect to such Superior Proposal, if, and only if, the Company’s board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable Law and the Company complies with Section 5.5(e)(iii) and, concurrently with entering into an Alternative Acquisition Agreement with respect to such Superior Proposal, the Company terminates this Agreement in accordance with the provisions of Section 7.1(c)(ii) (Definitive Agreement for Superior Proposal) and pays the applicable Parent Expenses and Atlas Termination Fee Refund pursuant to Section 7.1(c)(ii) and Section 7.7, respectively.
(iii) Prior to the board of directors of the Company effecting a Change of Recommendation or causing the Company to terminate this Agreement for purposes of entering into an Alternative Acquisition Agreement, in each case as permitted under Section 5.5(e)(ii), the Company shall have given Parent (A) at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Alternative Acquisition Proposal shall require a new notice and an additional two (2)-Business Day period) of the Company’s intention to take such action, which shall include a description of the terms and conditions of the Superior Proposal, the identity of the Person making the Superior Proposal and a copy of any proposed definitive agreement(s) relating to such Superior Proposal and (B) an opportunity to liaise with the Company and its outside legal and financial advisors during the foregoing four (4) Business Day period (or subsequent two (2) Business Day period) to discuss the foregoing Superior Proposal and negotiate in good faith any adjustments or revisions to the terms and conditions of this Agreement proposed by Parent in response thereto, such that such Alternative Acquisition Proposal would no longer constitute a Superior Proposal. In addition, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval, the board of directors of the Company may also effect a Change of Recommendation in response to an Intervening Event if the board of directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the board of directors of the Company to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the board of directors of the Company shall have given Parent and Merger Sub prompt (i) at least five (5) Business Days’ prior written notice advising them of (x) the decision of the Company’s Board intention to effect a Change of Directors Recommendation in response to take such action and Intervening Event, which shall include a description in reasonable detail of the reasons therefor applicable Intervening Event, and (yii) in the event the decision relates an opportunity to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided liaise with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c), (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, its outside legal and financial advisors during the Notice Period, foregoing five (5)-Business Day period to discuss the Company shall, foregoing Intervening Event and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (any adjustments or revisions to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicableproposed by Parent in response thereto, such Alternative Transaction Proposal ceases that the failure to constitute (in effect a Change of Recommendation would no longer be inconsistent with the judgment fiduciary duties of the Company’s Board board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changedirectors under applicable Law.
Appears in 1 contract
Change of Recommendation. Notwithstanding anything in this Agreement (i) In response to the contrary, at any time prior to obtaining the Company Stockholder Approvalreceipt of a Superior Offer that has not been withdrawn, the Company’s Board of Directors mayof the Company may withhold, withdraw, amend or modify its recommendation in favor of adoption of this Agreement and approval of the Merger and the transactions contemplated hereby, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), only if all of the following conditions in clauses (1) through (6) are met:
(1) a Superior Offer with respect to it concludes in good faith has been made and has not been withdrawn;
(after consultation with its financial advisors 2) the Company stockholders have not adopted this Agreement and outside legal advisors) that approved the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, Merger and the transactions contemplated hereby;
(A3) the Company shall have given provided Parent and Merger Sub prompt with written notice advising them of its intention to effect a Change of Recommendation (xa “Change of Recommendation Notice”) at least two business days prior to effecting a Change of Recommendation, which shall state expressly (A) that the decision of the Company’s Board of Directors to take such action and the reasons therefor and Company has received a Superior Offer, (yB) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4the identity of the Person or group making the Superior Offer, including the information required to be provided pursuant to Section 5.4(b) and (c)C) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so;
(4) after delivering the Change of Recommendation Notice, (B) the Company shall have given provided Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such two business day period, if applicableand shall have negotiated in good faith with respect thereto during such two business day period, such Alternative Transaction Proposal ceases to constitute (in regarding any changes proposed by Parent for the judgment purpose of enabling the Company’s Board of Directors, after consultation Directors to proceed with its financial advisors and outside legal advisors), a Superior Proposal or, if recommendation in favor of the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions adoption of this Agreement so that such Adverse Recommendation and approval of the Merger and the transactions contemplated hereby, without effecting a Change is otherwise not necessary, and of Recommendation;
(C5) the Company’s Board of Directors shall have determined has concluded in good faith, after considering following the results receipt of advice of its outside legal counsel, that, in light of such negotiations and giving Superior Offer, the failure of the Board of Directors to effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues a Change of Recommendation would be reasonably likely to constitute a Superior breach of its fiduciary obligations to its stockholders under applicable Legal Requirements in accordance with Section 5.3(c); and
(6) the Company shall not have breached in any material respect any of the provisions set forth in Section 5.2 or this Section 5.3.
(ii) Other than in connection with an Acquisition Proposal or that such Adverse Recommendation Change is otherwise still required; provided further thata Superior Offer (which shall be subject to Section 5.3(d)(i) and not subject to this Section 5.3(d)(ii)), (1) if during nothing in this Agreement shall prohibit or restrict the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors of the Company from making a Change of Recommendation to the extent that such Board of Directors determines in good faith, following the receipt of advice of its good faith judgment determines (after consultation with its financial advisors and reputable outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration counsel experienced in such Superior Proposal shall be deemed a material revisionmatters (including DLA Piper US LLP), that the failure of the Board of Directors to effect a Change of Recommendation would be reasonably likely to constitute a breach of the Board of Directors’ fiduciary obligations to its stockholders under applicable Legal Requirements; provided, however, that the Company shall deliver a new send to Parent written notice of its intention to Parent and shall comply with effect a Change of Recommendation at least two business days prior to effecting a Change of Recommendation.
(iii) the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does of the Company shall not make the determination referred to any Change of Recommendation other than in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to compliance with and as permitted by this Section 5.4(d5.3(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change.
Appears in 1 contract
Samples: Merger Agreement (Vantagemed Corp)
Change of Recommendation. Notwithstanding anything (i) Except as otherwise expressly provided in this Agreement Section 6.4(e), the Company Board shall not, directly or indirectly, (A) withdraw (or qualify, amend or modify in any manner adverse to Parent), or propose publicly to withdraw (or qualify, amend or modify in any manner adverse to Parent), the Company Board Recommendation, (B) approve, recommend or declare advisable any Company Acquisition Proposal or publicly propose any of the foregoing, (C) fail to include the Company Board Recommendation in the Proxy Statement, (D) (1) fail to recommend against any Company Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Company Acquisition Proposal or (2) make any recommendation or public statement in connection with a tender or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board, or (E) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days after Parent so requests in writing (it being understood that the Company will have no obligation to make such reaffirmation on more than two (2) separate occasions) (any such action in clause (A) through (E), a “Company Change of Recommendation”).
(ii) Notwithstanding the foregoing or anything to the contrarycontrary set forth in this Agreement, including Section 6.4(e)(i), at any time prior to obtaining the Company Stockholder Approval, the Company’s Company Board may (A) effect a Company Change of Directors mayRecommendation following a bona fide written Company Acquisition Proposal that did not result from or arise out of a breach of this Section 6.4 and which the Company Board determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Company Superior Proposal, in each case, if it concludes and only if, (x) the Company Board has determined in good faith (faith, after consultation with its financial advisors and outside legal advisorscounsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (y) the Company has complied with Section 6.4(e)(iii) or (B) following receipt of a bona fide written Company Acquisition Proposal which the Company Board determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Company Superior Proposal, terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (a “Company Alternative Acquisition Agreement”) with respect to such Company Superior Proposal, if, and only if, (x) the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse (y) the Company has complied with Section 6.4(e)(iii) and (z) concurrently with entering into a Company Alternative Acquisition Agreement with respect to such Company Superior Proposal, the Company terminates this Agreement in accordance with the provisions of Section 8.1(i) and pays the Termination Fee to Parent in accordance with Section 8.3(a).
(iii) Prior to the Company Board effecting a Company Change of Recommendation Change; provided that prior or the Company terminating this Agreement for purposes of entering into a Company Alternative Acquisition Agreement pursuant to any such Adverse Recommendation ChangeSection 8.1(i), in each case as permitted under, and in accordance with, Section 6.4(e)(ii), the Company shall (A) the Company shall have given Parent and Merger Sub prompt at least four (4) Business Days’ prior written notice advising them (it being understood and agreed that any amendment, adjustments or revisions to the amount or form of consideration payable in connection with, or any other material terms or conditions of, the applicable Company Acquisition Proposal shall require a new notice pursuant to this clause (xA) the decision and an additional two (2) Business Day period) of the Company’s Board of Directors intention to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposalaction, which shall include a summary description of the material terms and conditions of the Alternative Transaction Company Superior Proposal, the most current version of each proposed contract or agreement providing for or related to the Company Superior Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(bidentity of the Person(s) and (c)making the Company Superior Proposal, (B) the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) andif requested by Parent, during the Notice Period, the Company shall, and shall direct cause its outside legal and financial advisors and outside legal advisors other Representatives to, negotiate meet with Parent and its Representatives during the foregoing four (4) Business Day period (or any subsequent two (2) Business Day period, as applicable) to discuss the foregoing Company Superior Proposal and negotiate in good faith (any amendments, adjustments or revisions to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicableproposed by Parent in response thereto, such Alternative Transaction that such Company Acquisition Proposal ceases to would no longer constitute a Company Superior Proposal, and (C) after such four (4) Business Day period (and any subsequent two (2) Business Day period, as applicable), the Company Board determines in the judgment of the Company’s Board of Directorsgood faith, after consultation with its financial advisors and its outside counsel and taking into account any proposal by Parent to amend, adjust or revise the terms or conditions of this Agreement, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties under applicable law. In addition, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board may also effect a Company Change of Recommendation in response to an Intervening Event if (x) the Company Board determines in good faith, after consultation with the Company’s outside legal advisors)counsel, that the failure of the Company Board to take such action would be inconsistent with its fiduciary duties under applicable Law and (y) prior to making such Company Change of Recommendation the Company shall (1) have given Parent at least four (4) Business Days’ prior written notice of the Company Board’s intention to effect a Superior Proposal orCompany Change of Recommendation in response to such Intervening Event, which shall include a description in reasonable detail of the applicable Intervening Event, including sufficient information with respect to the reasons for the proposed Company Change of Recommendation to enable Parent to propose amendments, adjustments or revisions to this Agreement in such a manner to obviate the need for taking such action, (2) if the Adverse Recommendation Change does not involve an Alternative Transaction Proposalrequested by Parent, shall, and shall cause its outside legal and financial advisors and other Representatives, to make such meet with Parent and its Representatives during the foregoing four (4)-Business Day period to discuss the foregoing Intervening Event (including the reasons for the proposed Company Change of Recommendation) and negotiate in good faith any amendments, adjustments in or revisions to the terms and conditions of this Agreement so proposed by Parent in response thereto, such that such Adverse the failure to effect a Company Change of Recommendation Change is otherwise not necessary, would no longer be inconsistent with fiduciary duties under applicable Law and (C3) after such four (4) Business Day period, the Company’s Company Board of Directors shall have determined determines in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and its outside legal advisors) that such revisions are material (it being understood that counsel and taking into account any change in proposal by Parent to amend, adjust or revise the purchase price terms or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements conditions of this Section 5.4(d) with respect Agreement, that the failure to take make a Company Change of Recommendation in response to such new written notice except that the new Notice Period shall Intervening Event would be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changeinconsistent with its fiduciary duties under applicable law.
Appears in 1 contract
Samples: Merger Agreement (SOC Telemed, Inc.)
Change of Recommendation. Notwithstanding anything The Company Board or any committee thereof shall not withhold, withdraw, qualify, amend or modify in this Agreement a manner adverse to Parent the contrary, at Company Board Recommendation for any time prior to obtaining reason (a “Change of Recommendation”) unless:
(i) the Company Stockholder ApprovalApproval has not yet been obtained;
(ii) the Company shall have complied in all respects with the provisions and requirements set forth in Section 5.3(a) and complied in all material respects with the provisions and requirements set forth in Section 5.2, Section 5.3(b) and Section 5.3 (c);
(iii) a Superior Offer is made to the Company that is not withdrawn and continues to be a Superior Offer and is set forth in a final and definitive written agreement submitted to the Company subject only to the Company’s Board acceptance thereof (the “Definitive Third Party Agreement”);
(iv) the Company shall have provided to Parent four Business Days’ prior written notice (unless such Superior Offer is made fewer than four Business Days prior to the Company Stockholders Meeting in which case such notice shall be given as promptly as practicable) (a “Notice of Directors maySuperior Offer”) which shall state expressly (1) that the Company has received a Superior Offer, (2) the material terms and conditions of the Superior Offer and the identity of the Person or Group making the Superior Offer, and (3) that it intends to effect a Change of Recommendation and the manner and timing in which it intends to do so, and shall have provided Parent with a copy of the Definitive Third Party Agreement concurrently with the delivery of the Notice of Superior Offer;
(v) the Company shall have provided to Parent any nonpublic information delivered by the Company to the Person or Group making the Superior Offer (to the extent such nonpublic information has not been previously delivered by the Company to Parent) and, during the four Business Day period referred to in subclause (iv) above, if it requested by Parent, shall have engaged in good faith negotiations with Parent to amend this Agreement in such a manner that the Superior Offer would no longer be a Superior Offer;
(vi) Parent shall not have, within four Business Days of Parent’s receipt of the Notice of Superior Offer, made an offer that the Company Board by a majority vote concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel and a financial advisor of national standing) to be at least as favorable, from a financial point of view, to the Company’s stockholders (in their capacities as stockholders) as such Superior Offer (it being agreed that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, (A) the Company Board shall have given convene a meeting to consider any such offer by Parent and Merger Sub prompt written notice advising them of (x) following the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Alternative Transaction Proposal and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) and (c)receipt thereof, (B) that the Company shall have given Parent and Merger Sub three (3) Board will not effect a Change of Recommendation for four Business Days (the “Notice Period”) after delivery receipt by Parent of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, of Superior Offer and the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessaryDefinitive Third Party Agreement, and (C) any change to the Company’s Board of Directors shall have determined in good faith, after considering the results financial or other material terms of such negotiations and giving effect Superior Offer shall require a new Notice of Superior Offer to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in new four Business Day period under this clause (Bvi)); and
(vii) of this paragraph any revisions are made to the Superior ProposalCompany Board, if applicableby a majority vote, and the Company’s Board of Directors has concluded in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change counsel), that, in the purchase price or form light of consideration in such Superior Proposal shall be deemed a material revisionOffer and any offer made by Parent pursuant to Section 5.3(d)(vi), the Company shall deliver Board is required to effect a new written notice Change of Recommendation in order to Parent and shall comply with the requirements of this Section 5.4(d) with respect its fiduciary obligations to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changestockholders under applicable Legal Requirements.
Appears in 1 contract
Samples: Merger Agreement (Virage Logic Corp)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrary, at (i) At any time prior to obtaining adoption of this Agreement by the Required Company Stockholders, other than in connection with an Acquisition Proposal, the Board of Directors of the Company Stockholder Approval, may take the actions prohibited by clause (iii) of Section 5.2(b) (and in each case modify accordingly the statement of the Company’s Board of Directors may, included or to be included in the Proxy Statement pursuant to clause (ii) of Section 5.2(b)) if it concludes the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal advisorscounsel) that the failure to take such action would reasonably be inconsistent with Table of Contents expected to result in a breach of its fiduciary duties under applicable LawLegal Requirements; provided, make an Adverse Recommendation Change; provided however, that the Company shall have, at least three (3) days prior to any taking such Adverse Recommendation Changeaction, provided to Parent written notice which shall state expressly that the Company intends to take such action.
(ii) In response to the receipt of a Superior Offer, the Board of Directors of the Company may (A) withhold, withdraw, amend or modify the Company shall have given Parent Board Recommendation, (B) approve, endorse or recommend any Acquisition Proposal, (C) to the extent permitted by Section 7.1(i), enter into a binding written agreement concerning an Acquisition Proposal, and Merger Sub prompt written notice advising them (D) in the case of a Superior Offer that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (x) and in each case modify accordingly the decision statement of the Company’s Board of Directors included or to take such action and the reasons therefor and (y) be included in the event Proxy Statement pursuant to clause (ii) of Section 5.2(b)) (any of the decision relates foregoing actions in response to an Alternative Transaction Proposalthe receipt of a Superior Offer, whether by the Board of Directors of the Company or a committee thereof, a summary “Change of Recommendation”), if all of the following conditions in clauses (1) through (5) are met:
(1) A Superior Offer with respect to it has been made and has not been withdrawn;
(2) The Company Stockholders’ Meeting has not occurred;
(3) The Company shall have (A) at least three (3) days prior to a Change of Recommendation, provided to Parent written notice which shall state expressly (1) that the Company has received such Superior Offer, (2) the material terms and conditions of such Superior Offer and the Alternative Transaction Proposal identity of the Person or group making the Superior Offer, and other information requested (3) that the Company intends to be provided effect a Change of Recommendation and the manner in which it intends to do so, and (B) complied with respect thereto pursuant to this Section 5.4, including the information required to be provided its obligations pursuant to Section 5.4(b5.3(b) and Section 5.3(c)(i) in connection with such Superior Offer;
(c), (B4) The Board of Directors of the Company shall have given Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent has concluded in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directorsfaith, after consultation with its financial advisors and outside legal advisors)counsel, a that, in light of such Superior Proposal orOffer, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in failure of the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors to effect a Change of Recommendation would reasonably be expected to result in a breach of fiduciary duties to its stockholders under applicable Legal Requirements; and
(5) The Company shall not have determined materially breached (directly or indirectly) any of the provisions set forth in good faithSection 5.2 or this Section 5.3, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if as applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to obtaining such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days Superior Offer and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or changewhich breach is continuing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarycontrary contained in Section 5.3(a), at any time prior in response to obtaining the receipt of a Superior Offer, (x) the Board of Directors of the Company Stockholder Approvalmay withhold, withdraw, amend or modify its recommendation in favor of the Merger, and, in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Change of Recommendation”), (y) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, endorse, or recommend any Superior Offer or recommend a Superior Offer, or (z) the Company or any of its Subsidiaries may execute or enter into or propose to execute or enter into any letter of intent or similar document or any contract, agreement or commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Superior Offer or transaction contemplated thereby, if all of the following conditions in clauses (i) through (vi) are met:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s Board of Directors may, if it concludes in good faith (after consultation with its financial advisors and outside legal advisorscounsel, that a Superior Offer has been made and not withdrawn;
(ii) that the failure to take such action would be inconsistent stockholders of the Company have not approved this Agreement in accordance with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation Change, ;
(Aiii) the Company shall have given delivered to Parent and Merger Sub prompt written notice advising them (a “Change of Recommendation Notice”) at least five (x5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the Company has received a Superior Offer, (B) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material final terms and conditions of the Alternative Transaction Proposal Superior Offer and other information requested to be provided with respect thereto pursuant to this Section 5.4, including the information required to be provided pursuant to Section 5.4(b) identity of the Person or group making the Superior Offer and (c)C) that the Company intends to effect a Change of Recommendation;
(iv) after delivering the Change of Recommendation Notice, (B) the Company shall have given provide Parent and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Period, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement so thatduring such five- (5) Business Day period, if applicableand negotiate in good faith with respect thereto during such five- (5) Business Day period, such Alternative Transaction Proposal ceases as would enable the Company to constitute proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation;
(in v) the judgment Board of Directors of the Company’s Board of Directors, Company shall have determined (A) after consultation with its financial advisors advisor, that the terms of the Superior Offer are more favorable to the stockholders of the Company than the Merger (taking into account as it may be adjusted pursuant to paragraph (iv) above) and (B) after consultation with outside legal advisorscounsel, the failure to effect a Change of Recommendation would result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable Law; and
(vi) the Company shall not have breached any of the provisions set forth in Section 5.2 or this Section 5.3. In addition, the Board of Directors of the Company may withdraw, modify or fail to make, in a manner adverse to Parent or Merger Sub, the recommendation of the Board of Directors of the Company in favor of the adoption and approval of this Agreement and the approval of the Merger in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement) that was not known to the Board of Directors of the Company nor reasonably foreseeable by the Board of Directors of the Company as of or prior to the date of this Agreement (and not relating in any way to any Acquisition Proposal) (an “Intervening Recommendation Change” and such material fact, change, development or set of circumstances, an “Intervening Event”), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined of the Company determines in good faith, after considering the results consultation with outside legal counsel, that, in light of such negotiations and giving effect to Intervening Event, the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during failure of the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors of the Company to effect such an Intervening Recommendation Change would be reasonably likely to result in a breach of its good faith judgment determines (after consultation with its financial advisors fiduciary duties under applicable Law; provided that no fact, event, change, development or set of circumstances shall constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Merger; and outside legal advisors) provided, further, that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice not be entitled to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines exercise its rights to make an Adverse Intervening Recommendation Change pursuant to this Section 5.4(d), sentence unless the procedures referred to in clauses Company has (A)) provided to Parent at least four (4) Business Days prior written notice advising Parent that the Board of Directors of the Company intends to take such action and specifying the facts underlying the determination of the Board of Directors of the Company that an Intervening Event has occurred, an the reasons for the Intervening Recommendation Change, in reasonable detail, and (B) during such four (4) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend the Agreement in such a manner that obviates the need for a Intervening Recommendation Change. In the event that, subsequent to the date of this Agreement and (C) above prior to the meeting of the Company stockholders, there shall apply anew and have been a Change of Recommendation unless this Agreement is terminated by the Company or Parent, as the case may be, pursuant to Article VII, the Company shall also apply nevertheless submit this Agreement to any subsequent withdrawal, amendment or changethe stockholders of the Company for adoption.
Appears in 1 contract
Samples: Merger Agreement (Visa Inc.)
Change of Recommendation. Notwithstanding anything in this Agreement to the contrarySection 6.1(b), at any time prior to obtaining the Company Required Stockholder Approval, the board of directors of the Company may, solely in response to a Superior Proposal, make a Change of Recommendation and terminate this Agreement in accordance with Section 9.1(h), if all of the following conditions in clauses (i) through (v) are met:
(i) in the case of a Superior Proposal, such Superior Proposal has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company’s Board board of Directors maydirectors shall have (A) delivered to Parent written notice (a “Change of Recommendation Notice”) at least five (5) Business Days prior to informing the stockholders of the Company of, if it concludes or publicly effecting, such Change of Recommendation in good faith response to a Superior Proposal which shall state expressly (after consultation with its financial advisors and outside legal advisors1) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided that prior to any such Adverse Recommendation ChangeCompany has received a Superior Proposal, (A2) the Company shall have given Parent and Merger Sub prompt written notice advising them of (x) the decision of the Company’s Board of Directors to take such action and the reasons therefor and (y) in the event the decision relates to an Alternative Transaction Proposal, a summary of the material terms and conditions of the Superior Proposal and the identity of the Person or group making the Superior Proposal along with any documents delivered to the Company, or any of its Agents, by such Person or group in connection with such proposal, and (3) that the Company intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provide to Parent a copy of all materials and information delivered or made available to the Person or group making the Superior Proposal in connection with a Superior Proposal (to the extent not previously delivered or made available to Parent), and (C) during the aforementioned five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Superior Proposal would no longer be a Superior Proposal;
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made an offer that the Company’s board of directors has in good faith determined (after the receipt of advice from and consultation with its outside legal counsel and its financial adviser) results in the Alternative Transaction Proposal and other information requested that had been determined to be provided a Superior Proposal no longer being a Superior Proposal;
(iv) the board of directors of the Company has concluded in good faith, after receipt of advice from and consultation with respect thereto its outside legal counsel, that, in light of such Superior Proposal and after considering any adjustments or negotiations pursuant to this Section 5.4the preceding clause (ii), including that the information Company’s board of directors is required to be provided pursuant effect a Change of Recommendation to Section 5.4(b) and comply with its fiduciary obligations to the stockholders of the Company under the DGCL; and
(c), (Bv) the Company shall have given Parent previously complied with, and Merger Sub three (3) Business Days (the “Notice Period”) after delivery of each such notice continues to propose revisions to the terms of this Agreement (or make another proposal) and, during the Notice Periodcomply with, the Company shall, and shall direct its financial advisors and outside legal advisors to, negotiate with Parent provisions set forth in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that, if applicable, such Alternative Transaction Proposal ceases to constitute (in the judgment of the Company’s Board of Directors, after consultation with its financial advisors and outside legal advisors), a Superior Proposal or, if the Adverse Recommendation Change does not involve an Alternative Transaction Proposal, to make such adjustments in the terms and conditions of this Agreement so that such Adverse Recommendation Change is otherwise not necessary, and (C) the Company’s Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any, that such Alternative Transaction Proposal, if applicable, continues to constitute a Superior Proposal or that such Adverse Recommendation Change is otherwise still required; provided further that, (1) if during the Notice Period described in clause (B) of this paragraph any revisions are made to the Superior Proposal, if applicable, and the Company’s Board of Directors in its good faith judgment determines (after consultation with its financial advisors and outside legal advisors) that such revisions are material (it being understood that any change in the purchase price or form of consideration in such Superior Proposal shall be deemed a material revision), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.4(d) with respect to such new written notice except that the new Notice Period shall be two (2) Business Days instead of three (3) Business Days and (2) in the event the Company’s Board of Directors does not make the determination referred to in clause (C) of this paragraph but thereafter determines to make an Adverse Recommendation Change pursuant to this Section 5.4(d), the procedures referred to in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or change6.2.
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Samples: Agreement and Plan of Reorganization (Harmonic Inc)