Change of Recommendation. The Company shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.
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Change of Recommendation. The Company shall, Parent and shall cause Merger Sub acknowledge that (a) the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision resolution of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, adopting the Company mayRecommendation was not unanimous, with prior written notice to Parent, waive such standstill solely (b) the Proxy Statement will contain the reasons that directors did not vote in favor of said resolution as of the date of its adoption and (c) the foregoing in and of themselves shall not constitute a breach of Section 7.2 of this Agreement. Notwithstanding anything to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations contrary set forth in this Section 6.6(a), if the Company receivesAgreement, prior to the Company Shareholder Approval being time, but not after, the Requisite Stockholder Vote is obtained, the Company Board, or any duly authorized committee thereof, may effect a Change of Recommendation in connection with or relating to a Superior Proposal or authorize the Company to terminate this Agreement pursuant to Section 9.3(b) if (but only if) (v) a bona fide written Acquisition Proposal is received by the Company or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that its Representatives after the execution and delivery of this Agreement which did not result from a breach of this Section 6.6(a)(i) or (ii), which the Company Board of Directors determines 7.2 in good faith after consultation with the Company’s outside legal counsel any material respect and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result is not withdrawn and is reflected in a breach of written definitive agreement that would be binding, subject to the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposalwritten definitive agreement, inquiryon the applicable party if executed and delivered by the Company following termination of this Agreement, proposal(w) the Company Board, or offer a duly authorized committee thereof, determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and the Company Board, or committee thereof, after consultation with outside legal counsel, determines that the failure to effect a Change of Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.3(b) would be inconsistent with the directors’ duties under applicable Law, (x) the Company provides Parent with at least 96 hours written notice stating that the Company will effect a Change of Recommendation pursuant to this Section 7.2(b) or the Company Board will authorize the Company to terminate this Agreement pursuant to Section 9.3(b) at the expiration of such 96 hour period, which notice shall (A) provide the identity of the Person making it so the Superior Proposal and (B) attach the most current draft of any proposed definitive agreement and any ancillary documents with respect to such Superior Proposal; provided, however, that any change to the financial terms or any other material changes to the terms and conditions of such Superior Proposal shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the requirements of this paragraph of Section 7.2(b) (provided that references to the 96 hour period above shall be deemed to refer to a two Business Day period (provided, that, for purposes of this paragraph, if the Company delivers written notice prior to 8:00 a.m. New York City time on a Business Day, such Business Day shall be included as one Business Day in such two Business Day period) in connection with the delivery of any such new notice), (y) during the period described in clause (x), the Company and its Representatives negotiate in good faith (to the extent that Parent desires to negotiate) to make any revisions to the terms of this Agreement as would permit the Company Board or any duly authorized committee thereof not to effect a Change of Recommendation in connection with the Superior Proposal or authorize the Company to terminate this Agreement pursuant to Section 9.3(b), and (z) following the 96 hour period described in clause (x) (or two Business Day period, as applicable), the Company Board, or a committee thereof, again determines in good faith, after consultation with a financial advisor and outside legal counsel, and taking into account any adjustment or modification to the terms and conditions of this Agreement that Parent has committed in writing prior to the expiration of such 96 hour period (or two Business Day period, as applicable) and that are reflected in a written definitive agreement that would be binding on Parent if executed and delivered by the Company, that the Superior Proposal continues to (A) be reflected in a written definitive agreement that would be binding, subject to the terms and conditions of such written definitive agreement, on the applicable Person making the Superior Proposal, if executed and delivered by the Company and (B) constitute a Superior Proposal, and that the failure to effect a Change of Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.3(b) with respect to such Superior Proposal would be inconsistent with the directors’ duties under applicable Law. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Stockholder Vote is obtained, the Company Board, or any duly authorized committee thereof, may take the actions described in Section 7.2(b)(i) and Section 7.2(b)(iii), in response to an Intervening Event, if (but only if): (w) the Company Board, or duly authorized committee thereof determines, after consultation with outside legal counsel, that the failure to effect a Change of Recommendation with respect to such development or change in circumstances would be inconsistent with the directors’ duties under applicable Law, (x) the Company provides Parent with at least 96 hours written notice stating that the Company may inform itself about will effect a Change of Recommendation pursuant to this Section 7.2(b) at the expiration of such Acquisition Proposal96 hour period, inquirywhich notice shall describe in reasonable detail such Intervening Event; provided, proposalhowever, that any subsequent development or change in circumstances shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the provisions of this paragraph (provided that references to the 96 hour period above shall be deemed to refer to a two Business Day period in connection with the delivery of any such notice (provided, that, for purposes of this paragraph, if the Company delivers written notice prior to 8:00 a.m. New York City time on a Business Day, such Business Day shall be included as one Business Day in such two Business Day period)), (y) during the period described in clause (x), the Company and its Representatives negotiate in good faith (to the extent that Parent desires to negotiate) any revisions to this Agreement as would permit the Company Board or any duly authorized committee thereof to determinate that the failure to effect a Change of Recommendation with respect to such Intervening Event would not be inconsistent with the directors’ duties under applicable Law, and (z) following the 96 hour period described in clause (x) (or two Business Day period, as applicable), the Company Board, or offer committee thereof, again determines, after consultation with outside legal counsel, and taking into account any adjustment or modification to the person making itterms and conditions of this Agreement to which Parent has committed in writing prior to the expiration of such 96 hour period (or two Business Day period, as applicable) and that are reflected in a written definitive agreement that would be binding on Parent if executed and delivered by the Company, that the failure to effect a Change of Recommendation with respect to such Intervening Event would be inconsistent with the directors’ duties under applicable Law.
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Change of Recommendation. The Notwithstanding any provision of Section 6.02(e), at any time prior to the earlier to occur of the Offer Closing and obtaining the Stockholder Approval, the Company Board may effect an Adverse Recommendation Change only if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary, the Company Board shall not be entitled to exercise its right to make an Adverse Recommendation Change or, solely with regards to a Superior Proposal, terminate this Agreement pursuant to Section 9.01(f) (x) unless the Company shall have provided prior written notice to Parent and Sub, at least three (3) business days in advance, that it will effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(f) and specifying the reasons therefor (a “Notice of Intended Recommendation Change”) and (y):
(i) if such Adverse Recommendation Change is not being made as a result of a Superior Proposal, during such three (3) business day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent to amend this Agreement in such a manner that would otherwise obviate the need for such Adverse Recommendation Change; or
(ii) if such Adverse Recommendation Change or termination is being made as a result of a Superior Proposal:
(1) the Notice of Intended Recommendation Change shall specify the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents relating to such Superior Proposal (it being understood and agreed that any material amendment to the 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 requirements of this Section 6.02(f), except that the prior written notice period and corresponding references to a three (3) business day period shall be reduced to a one (1) business day for any such new Notice of Intended Recommendation Change); 35
(2) after providing any such Notice of Intended Recommendation Change, the Company shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any negotiate with Parent and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines Sub in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely (to the extent necessary Parent and Sub desire to permit negotiate) during such three (3) business day period (or one business day period in the applicable Person case of a new Notice of Intended Recommendation Change) to make such adjustments in the terms and conditions of this Agreement and the other agreements contemplated hereby; and
(if it has not been solicited iii) in violation the case of Section 6.6(a)(ieither clause (i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or clause (ii), which the Company Board of Directors determines shall have considered in good faith after consultation with any adjustments to this Agreement (including a change to the Company’s outside legal counsel price terms hereof) and financial advisors the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third business day of such three (i3) constitutes business day period (or the first business day of such one (1) business day period for any such new Notice of Intended Recommendation Change) and shall have determined that (x) in the case of a Superior Proposal, the Superior Proposal would continue to constitute a Superior Proposal or would reasonably if such adjustments were to be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6given effect, or (y) solely to clarify or ascertain facts regarding in the case of an Adverse Recommendation Change not being made as a result of a Superior Proposal, no adjustment has been made that would obviate the need for such Adverse Recommendation Change, and (and not to negotiate or engage in any discussions regarding or relating toy) the material terms and conditions of findings contemplated by clause (i) above continue to be applicable such Acquisition Proposal, inquiry, proposal, or offer and that an Adverse Recommendation Change should be made the Person making it so that the Company may inform itself about Superior Proposal would continue to constitute a Superior Proposal if such Acquisition Proposal, inquiry, proposal, or offer and the person making itadjustments were to be given effect.
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Change of Recommendation. The Company shall, and shall cause Each of the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its Special Committee and the Company Subsidiaries’ other Representatives toBoard shall (i) recommend that the Company’s stockholders adopt this Agreement and (ii) not withhold, immediately cease any and all solicitationwithdraw, encouragement, discussions, qualify or negotiations with any persons (modify in a manner adverse to Parent the Special Committee Recommendation or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access Board Recommendation or publicly recommend or announce an intention to take any physical action or electronic data rooms relating make any statement inconsistent with the Special Committee Recommendation or the Company Board Recommendation (any of the actions prohibited by this clause (ii), a “Change of Recommendation”). Notwithstanding anything to such person’s consideration of an Acquisition Proposal. The Company shall enforcethe contrary in this Agreement, and not waive, terminate, or modify without Parent’s prior written consent, at any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into time prior to the date hereof with any person in connection with such person’s consideration receipt of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, thatthe Company Stockholder Approvals, if the Company Board of Directors Special Committee determines in good faith (after consultation considering the advice of its outside legal advisors) that it would be inconsistent with its fiduciary duties under Delaware Law to continue to recommend that the Company’s outside legal counsel that stockholders (other than the failure Parent Parties and their Affiliates) vote to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, grant the Company may, with prior written notice to Parent, waive such standstill solely to Stockholder Approvals then either or both of the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) Special Committee or (ii)) to make, on a confidential basis to the Company Board (only upon the recommendation of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure the Special Committee) may make a Change of such Acquisition Proposal to ParentRecommendation, in each case, as contemplated by this Section 6.6. Notwithstanding which case the limitations set forth in this Section 6.6(a), if obligations of the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which Special Committee and the Company Board under this Section 5.3 shall cease; provided, that the Special Committee and the Company Board may not make a Change of Directors determines Recommendation (a) until after at least three (3) Business Days following Parent’s receipt of written notice from the Company advising Parent that the Special Committee and/or the Company Board intends to make a Change of Recommendation and setting forth a summary of the reason for the proposed Change of Recommendation and (b) unless the Special Committee shall have considered in good faith after consultation with any proposals that may have been made by Parent during such period of three (3) Business Days. A Change of Recommendation shall not affect the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this obligations under Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it5.4.
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Change of Recommendation. The Company shallNotwithstanding anything to the contrary in this Agreement, and shall cause at any time prior to the Company Subsidiaries and its and their respective officers and directors totime, and shall use its reasonable best efforts to cause its and but not after, the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any personscondition in Section 7.1(a) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereofhas been satisfied, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration Board may make a Change of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person Recommendation in connection with such person’s consideration of an Acquisition a Superior Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead in response to an Acquisition Proposal; providedIntervening Event, thatin either case, if the Company Board of Directors determines in good faith faith, after consultation with the Company’s its financial advisor and outside legal counsel counsel, that the failure to waive a particular standstill provision take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, or may terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement with respect to such a Superior Proposal; provided, however, that the Company may, Board shall not take such action unless:
(i) the Company shall have complied in all material respects with this Section 6.2(g);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to ParentParent at least five (5) business days in advance (the “Notice Period”) 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, waive including, in the case such standstill solely action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(d) with respect to such Superior Proposal;
(iii) the Company shall have, and shall have caused its financial and legal advisors to be available, during the Notice Period, for negotiations with Parent and its Representatives in good faith (to the extent necessary Parent desires to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)negotiate) to make, on a confidential basis to make such adjustments in the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of this Agreement such that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that in the event of any material revisions to the terms of such Superior Proposal, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and the revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to three (3) business days (it being understood that the delivery of any such new Determination Notice shall not shorten the original five (5) business day Notice Period); Table of Contents (iv) at or following the end of such Notice Period (inclusive of any Notice Period following the delivery of any new Determination Notice(s) in accordance with Section 6.2(g)(iii)), the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that, in the case of a Change of Recommendation in connection with a Superior Proposal, such Acquisition Proposal, inquiry, proposal, Proposal remains a Superior Proposal (including taking into account any adjustments in the terms of this Agreement proposed by Parent in connection with Section 6.2(g)(iii) above) and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any revisions to this Agreement made or offer and proposed in writing by Parent prior to the Person making it so that end of the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.latest Notice Period pursuant to clause (iii) above); and
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Change of Recommendation. The Notwithstanding any provision of Section 5.2(e), at any time prior to the earlier to occur of the Offer Closing and obtaining the Stockholder Approval, (i) if the Company has received a bona fide written Takeover Proposal that the Company Board determines in good faith (after consultation with its outside legal counsel) constitutes a Superior Proposal, or (ii) if an Intervening Event has occurred, the Company Board may effect an Adverse Recommendation Change in connection with such Superior Proposal or in response to such Intervening Event if and only if:
(A) it determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law;
(B) the Company shall have provided prior written notice to Parent and Merger Sub, at least three Business Days in advance, that it will effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(f) and specifying the reasons therefor (a “Notice of Intended Recommendation Change”)(it being understood and agreed that any material amendment to the terms of any Superior Proposal (and in any event including any amendment to any price term thereof), or any material change to the facts and circumstances relating to an Intervening Event, in each case that was previously the subject of a Notice of Intended Recommendation Change, shall require a new Notice of Intended Recommendation Change (an “Amended Notice of Intended Recommendation Change”) and compliance with the requirements of this Section 5.2(f), except that the prior written notice period and corresponding references to a three Business Day period shall be reduced to a one Business Day period for any such Amended Notice of Intended Recommendation Change);
(C) to the extent such Adverse Recommendation Change or termination is being made as a result of a Superior Proposal:
(1) the Notice of Intended Recommendation Change shall specify the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents relating to such Superior Proposal;
(2) after providing any such Notice of Intended Recommendation Change, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three Business Day period (or one Business Day period in the event of an Amended Notice of Intended Recommendation Change) to make such adjustments in the terms and conditions of this Agreement and the other agreements contemplated hereby; and
(3) the Company Subsidiaries Board shall have considered in good faith (after consultation with its outside legal counsel) any adjustments to this Agreement (including a change to the price terms hereof) and its the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third Business Day of such three Business Day period (or first Business Day of such one Business Day period in the event of an Amended Notice of Intended Recommendation Change) and their respective officers and directors toshall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such adjustments were to be given effect; and
(D) to the extent such Adverse Recommendation Change is being made in response to an Intervening Event:
(1) the Notice of Intended Recommendation Change shall specify the Intervening Event in reasonable detail;
(2) after providing any such Notice of Intended Recommendation Change, the Company shall, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three Business Day period (or one Business Day period in the event of an Amended Notice of Intended Recommendation Change) to amend this Agreement in such a manner that such Intervening Event no longer necessitates such Adverse Recommendation Change; and
(3) the Company Board shall have considered in good faith any adjustments to this Agreement and all solicitationthe other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., encouragementNew York City time, discussionson the third Business Day of such three Business Day period (or first Business Day of such one Business Day period in the event of an Amended Notice of Intended Recommendation Change and shall have determined in good faith (after consultation with its outside legal counsel) that such Intervening Event continues to necessitate an Adverse Recommendation Change.
(E) In the event that the Company has given a Notice of Intended Recommendation Change, Parent may, upon written notice to the Company, extend the Effective Time and, if applicable, the expiration of the Offer (but in no event, in either such case, beyond the earlier of (i) the Outside Date, (ii) the end of the first Business Day following the period described in Section 5.2(f)(C)(3) or Section 5.2(f)(D)(3), as applicable, or (iii) any other date agreed upon by the Parties) to allow sufficient time for the negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, between the Company shall terminate access and the Parent and the Merger Sub regarding possible adjustments to any physical or electronic data rooms relating to such person’s this Agreement, consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if by the Company Board of Directors determines in good faith after consultation with adjustments to this Agreement or the Company’s outside legal counsel that determination of an Adverse Recommendation Change and/or the failure termination of this Agreement pursuant to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i8.1(e) or (iiSection 8.1(f)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.
Appears in 1 contract
Change of Recommendation. The Following the receipt of an unsolicited Takeover Proposal received by the Company shallbefore the Closing that is a Superior Proposal, and shall the Board of Directors (or a committee thereof) may cause the Company Subsidiaries to terminate this Agreement pursuant to Section 8.01(d)(i) and its and their respective officers and directors to, and shall use its reasonable best efforts either (x) enter into or seek to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) enter into an Alternative Acquisition Agreement with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result (y) in the case of a Superior Proposal and that is a tender offer or exchange offer made directly to its stockholders, recommend that its stockholders accept the tender or exchange offer (ii) that failure to participate in negotiations with or provide information to any such termination, whether caused by the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of DirectorsDirectors or a committee thereof, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to actions described under clause (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely above, a "Change of Recommendation"); provided, however, that the Company shall not terminate this Agreement pursuant to clarify this Section 5.02(d) or ascertain facts regarding Section 8.01(d)(i), and any purported termination pursuant to such sections shall be void and of no force and effect, unless concurrently with such termination pursuant to this Section 5.02(d) or Section 8.01(d)(i), the Company satisfies all of the following conditions:
(i) the Superior Proposal has been made and has not been withdrawn and continues to negotiate or engage in any discussions regarding or relating tobe 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, (y) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer the Superior Proposal and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and identity of the person making itthe Superior Proposal, and (z) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, (B) provided to Parent all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal not otherwise made available to Parent, and (C) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations to amend this Agreement in such a manner that the Takeover Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal (for purposes of such determination, if the consideration offered in a Superior Proposal is other than cash, Parent shall be deemed to have "matched" such Superior Proposal for purposes of the amount of consideration of such Superior Proposal if the aggregate consideration offered by Parent has a value that is not less than the value of the consideration offered in the Superior Proposal, as determined in good faith by the Board of Directors (or a committee thereof), after consultation with and taking into account the advice of its outside legal counsel);
(iii) the Company shall have paid to Parent the Termination Fee and the Expense Reimbursement referred to in Section 6.05(b); and
(iv) the Company shall have complied with this Section 5.02(d) and shall not have breached in any material respect any of the other provisions set forth in this Section 5.02.
Appears in 1 contract
Samples: Merger Agreement (Cimnet Inc/Pa)
Change of Recommendation. The Notwithstanding anything to the contrary in this Agreement, at any time prior to the time, but not after, the Requisite Company shallVote is obtained, and shall cause the Company Subsidiaries Board may make a Change of Recommendation (x) following receipt of an Acquisition Proposal after the execution of this Agreement that did not result from a material breach of this Section 6.2 and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and that the Company Subsidiaries’ other Representatives to, immediately cease any Board determines in good faith (after consultation with its financial advisor and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any personsoutside legal counsel) with respect to any Acquisition constitutes a Superior Proposal or any inquiry(y) solely in response to a material event, proposaloccurrence, development or offer that would reasonably be expected to lead state of facts or circumstances, not related to an Acquisition Proposal. Promptly after , and that first occurred following the date hereofexecution of this Agreement and was neither known to, nor reasonably foreseeable by, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into Board prior to the date hereof with any person of this Agreement (an “Intervening Event”), in connection with such person’s consideration of an Acquisition Proposal or any inquiryeach case referred to in clauses (x) and (y) above, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, only if the Company Board of Directors determines in good faith faith, after consultation with the Company’s outside legal counsel counsel, that the failure to waive a particular standstill provision take such action would be reasonably likely expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and may also terminate this Agreement pursuant to Section 8.3(a) to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal; provided, however, that the Company may, Board shall not take such action unless:
(i) the Company shall have complied with its obligations under this Section 6.2 in all material respects;
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to ParentParent at least 72 hours in advance of taking such actions (the “Notice Period”) 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, waive including, in the case such standstill solely action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(c) with respect to such Superior Proposal, including a copy of the relevant proposed transaction agreements with, and the identity of, the party making the Acquisition Proposal;
(iii) the Company shall have, and shall have caused its financial and legal advisors to have, during the Notice Period, negotiated with Parent and its Representatives in good faith (to the extent necessary Parent desires to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)negotiate) to makemake such adjustments to the terms and conditions of this Agreement such that the failure to take such action would no longer be inconsistent with the directors’ duties under applicable Law; provided, on however, that in the event of any amendment to the financial terms or any other material terms of such Superior Proposal, the Company shall be required to deliver a confidential basis new Determination Notice to Parent and to comply with the requirements of this Section 6.2(f)(iii) with respect to such new Determination Notice and the revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to 48 hours;
(iv) at or following the end of such Notice Period, the Company Board of Directorsshall have determined in good faith, an Acquisition Proposalafter consultation with its financial advisor and outside legal counsel, conditioned upon that failure to take such person agreeing action would continue to disclosure of such Acquisition Proposal be inconsistent with the directors’ duties under applicable Law (taking into account any revisions to Parent, this Agreement made or proposed in each case, as contemplated writing by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, Parent prior to the Company Shareholder Approval being obtainedtime of such determination pursuant to clause (iii) above); and
(v) in the event of a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines shall have validly terminated this Agreement in good faith after consultation accordance with the Company’s outside legal counsel Section 8.3 and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of paid the Company Board of DirectorsTermination Fee in accordance with Section 8.5. After twice complying with clause (iii) above with respect to any such Superior Proposal, the Company and the Company’s Representatives may contact the Person or Company Board shall have no further obligations under clause (iii) with respect to any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer Superior Proposal and the Person making it so that the Company may inform itself about Board shall not be required to comply with such Acquisition obligations with respect to any such Superior Proposal, inquiry, proposal, or offer and the person making it.
Appears in 1 contract
Change of Recommendation. The Company shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision Solely in any confidentiality, standstill, or other agreement entered into prior response to the date hereof with any person in connection with such person’s consideration receipt of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably an Intervening Event, the Board of Directors of the Company may make a Change of Recommendation (and the Company may terminate this Agreement to the extent permitted by, and in accordance with, Section 8.1(j)), if all of the following conditions in clauses (i) through (vi) are met:
(i) in the case of a Superior Proposal, the Superior Proposal shall have been made and not withdrawn and shall continue to be expected a Superior Proposal;
(ii) the Company Stockholder Approval shall not yet have been obtained;
(iii) the Company shall have: (A) delivered to result in 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 Company has received a Superior Proposal and or an Intervening Event has occurred, as applicable, (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to2) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer the Superior Proposal and the Person identity of the Third Party making it so the Superior Proposal or, in the case of an Intervening Event, a description in reasonable detail of the cause and factors constituting such Intervening Event, and (3) that the Company may inform itself about intends to effect a Change of Recommendation and the manner in which it intends to do so; (B) provided to Parent a copy of all materials and information delivered or made available by or on behalf of the Company to the Third Party making the Superior Proposal in connection with such Acquisition Superior Proposal; and (C) during the aforementioned three (3) 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 or, in the case of an Intervening Event, obviates the need for a Change of Recommendation to comply with its fiduciary obligations to the stockholders of the Company under Delaware Law;
(iv) Parent shall not have, within the aforementioned three (3) Business Day period, made an offer in writing that the Company’s Board of Directors has in good faith determined (after consultation with its outside financial advisor and outside legal counsel) results in the Alternative Transaction Proposal that had been determined to be a Superior Proposal no longer being a Superior Proposal or, in the case of an Intervening Event, obviates the need for a Change of Recommendation to comply with its fiduciary obligations to the stockholders of the Company under Delaware Law;
(v) the Board of Directors of the Company shall have concluded in good faith, after consultation with its outside legal counsel, that, in light of such Superior Proposal or Intervening Event and after considering any adjustments proposed by Parent in writing pursuant to the preceding clause (iv), that the Company’s Board of Directors is required to effect a Change of Recommendation to comply with its fiduciary obligations to the stockholders of the Company under Delaware Law; and
(vi) the Company shall have previously complied with the provisions set forth in Section 6.2 and this Section 6.3. Notwithstanding anything to the contrary contained herein, in the event of a Superior Proposal, inquiryany material amendment or modification to an existing Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3(d), proposaland in the event of an Intervening Event, or offer any material change to the Intervening Event will be deemed to be a new Intervening Event for purposes of this Section 6.3(d) (and each will require a new three (3) Business Day period, measured as set forth above, and compliance with the person making itterms of this Section 6.3(d), before the Board of Directors of the Company is permitted hereunder to make a Change of Recommendation).
Appears in 1 contract
Samples: Merger Agreement (Answers CORP)
Change of Recommendation. The Company shall(i) Notwithstanding anything in this Agreement to the contrary, and shall cause prior to the Company Subsidiaries and its and their respective officers and directors totime, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereofbut not after, the Company shall terminate access to any physical Requisite Vote is obtained, if a written Acquisition Proposal that did not otherwise result from a breach (other than an unintentional or electronic data rooms relating to such person’s consideration de minimis breach) of an Acquisition Proposal. The Company shall enforceSection 6.1 is received by the Company, and not waivethe Board of Directors of the Company determines in good faith, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof after consultation with any person in connection with its outside legal counsel and its financial advisor(s) that such person’s consideration of an Acquisition Proposal or any inquirywould, proposalif consummated, or offer that would reasonably be expected to lead to an Acquisition constitute a Superior Proposal; provided, thatthe Board of Directors of the Company may, if the Company Board of Directors determines of the Company has determined in good faith after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the Company’s directors’ fiduciary -40- 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); provided further, that, prior to taking such action described in clauses (x) and/or (y) above, (A) the Company shall give Parent written notice four (4) Business Days in advance (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”), which notice shall set forth in writing (I) that the Board of Directors of the Company has received a written Acquisition Proposal that would, if consummated, constitute a Superior Proposal, (II) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Acquisition Proposal and all other documents (other than immaterial documents) related to the Superior Proposal and (III) advise Parent that the Board of Directors of the Company intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal (such notice, the “Company Notice”), (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall 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 precedent 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, if such changes offered in writing by Parent (if any) were to be given effect. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” and such three 31) Business Day period shall expire at 5:00 p.m. on the 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).
(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 waive a particular standstill provision take such action in response to such Intervening Event would -41- reasonably be reasonably likely expected to 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 five (5) Business Days in advance, which notice shall include a reasonably detailed description of such Intervening Event and the rationale for the Change of Recommendation, (B) after giving such Company Notice and prior to effecting a Change of Recommendation, the Company may, shall negotiate in good faith with prior written notice to Parent, waive such standstill solely Parent (to the extent necessary requested by Parent), to permit make revisions to the applicable Person terms of this Agreement and (if it has not been solicited C) at the end of the Notice Period, prior to and as a condition precedent to effecting a Change of Recommendation, the Board of Directors of the Company shall take into account in violation good faith any changes to the terms of Section 6.6(a)(i) or (ii)) to make, on a confidential basis this Agreement proposed in writing by Parent in response to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, Notice and any other information offered by Parent in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior response to the Company Shareholder Approval being obtainedNotice, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines and shall have determined in good faith after consultation with the Company’s its outside legal counsel and its financial advisors advisor(s) that (iI) constitutes such Intervening Event remains in effect and (II) the failure to effect a Superior Proposal or Change of Recommendation in response to such Intervening Event would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations be inconsistent with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the directors’ fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made under applicable Law if such Acquisition Proposal, inquiry, proposal, or offer changes proposed in writing by Parent (if any) were to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making itbe given effect.
Appears in 1 contract
Samples: Merger Agreement (Ferro Corp)
Change of Recommendation. The Company shallNotwithstanding anything in this Agreement to the contrary, and shall cause if, at any time prior to obtaining the Requisite Shareholder Approval, the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and receives a Competing Proposal which the Board of Directors of the Company Subsidiaries’ other Representatives toconcludes in good faith, immediately cease any after consulting with outside counsel and all solicitationfinancial advisors, encouragementconstitutes a Superior Proposal, discussions, or negotiations with any persons the Board of Directors of the Company may (or provision x) effect a Change of any information Recommendation and/or (y) terminate this Agreement to any persons) enter into a definitive agreement with respect to any Acquisition such Superior Proposal or any inquiryif the Board of Directors of the Company determines in good faith, proposalafter consultation with outside counsel and its financial advisor, or offer that would failure to take such action could reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereofviolate its fiduciary duties under applicable Law; provided, however that the Company shall not terminate access this Agreement pursuant to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforcethe foregoing clause (y), and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior purported termination pursuant to the date hereof with any person in connection foregoing clause (y) shall be void and of no force or effect, unless concurrently with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected termination the Company pays the Company Termination Fee payable pursuant to lead to an Acquisition ProposalSection 8.02(a); and provided, thatfurther, if that the Company Board of Directors determines of the Company may not effect a Change of Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) in response to a Superior Proposal unless (i) the Company shall have provided prior written notice to the Parents, at least five (5) business days in advance (the “Notice Period”), of its intention to effect a Change of Recommendation in response to such Superior Proposal or terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal) and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents and (ii) the Board of Directors of the Company shall have determined in good faith faith, after consultation with the Company’s outside legal counsel counsel, that the failure to waive make a particular standstill provision would Change of Recommendation in connection with the Superior Proposal could be reasonably likely to be inconsistent with violate the directorsCompany’s Board of Directors’ fiduciary duties under applicable Law, and (iii) the Company mayshall have promptly notified the Parents in writing of the determinations described in clause (ii) above, and (iv) following the expiration of the Notice Period, and taking into account any revised proposal made by the Parents since commencement of the Notice Period, the Board of Directors of the Company has determined in good faith, after consultation with prior written notice to Parentoutside legal counsel, waive that such standstill solely Superior Proposal remains a Superior Proposal; provided, however, that during such Notice Period the Company shall in good faith negotiate with the Parents, to the extent necessary the Parents wish to permit negotiate, to enable the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) Parents to make, on a confidential basis make such proposed changes to the Company terms of this Agreement, provided, further, that in the event of any material change to the material terms of such Superior Proposal, the Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure Directors of such Acquisition Proposal to Parentthe Company shall, in each casecase deliver to the Parents an additional notice, as contemplated by this Section 6.6. Notwithstanding and the limitations set forth in this Section 6.6(a), if Notice Period shall recommence; (v) the Company receivesis in compliance, prior in all material respects, with Section 6.07, and (vi) with respect to a termination of this Agreement pursuant to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or foregoing clause (iiy), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that concurrently pays the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making itTermination Fee pursuant to Section 8.02(a).
Appears in 1 contract
Samples: Merger Agreement (Clear Channel Communications Inc)
Change of Recommendation. The Company (a) Except as expressly permitted by this Section 7.9, neither the CFI Board nor any committee thereof (including the Special Committee) shall (i) withhold, withdraw, modify or qualify (in a manner adverse to CC), or publicly propose to do any of the foregoing, the Recommendation or (ii) fail to include the Recommendation in the Proxy Statement (any such action being referred to as a “Change of Recommendation”).
(b) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Requisite CFI Stockholder Approvals are obtained, the Special Committee may effect a Change of Recommendation (in which case the CFI Board shall effect a corresponding Change of Recommendation), if, and only if:
(i) the CFI Board or the Special Committee determines in good faith, after consultation with its financial advisor and outside legal counsel, that failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law and CFI shall have complied with all of its obligations under this Section 7.9;
(ii) CFI shall have provided prior written notice to CC, at least three Business Days in advance, that the CFI Board or the Special Committee intends to effect a Change of Recommendation, which notice shall specify, in reasonable detail the basis for the Change of Recommendation;
(iii) after providing such notice and prior to the Special Committee and the CFI Board effecting such Change of Recommendation, CFI shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations negotiate with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines CC in good faith (to the extent CC desires to negotiate) during such three Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Special Committee and the CFI Board not to effect a Change of Recommendation; and
(iv) the Special Committee shall have considered in good faith any changes to this Agreement that may be offered in writing by CC no later than 5:00 PM Eastern time on the third Business Day of such three Business Day period in a manner that would form a binding contract if accepted by CFI and shall have determined, after consultation with the Company’s its financial advisor and outside legal counsel counsel, that failure of the failure CFI Board or the Special Committee to waive effect a particular standstill provision Change of Recommendation would be reasonably likely continue to be inconsistent with the directors’ fiduciary duties under applicable Law, if such changes were to be given effect; provided that in the Company mayevent of any material change in the circumstances giving rise to the Change of Recommendation, with prior CFI shall be required to deliver a new written notice to Parent, waive such standstill solely CC and to comply with the extent necessary to permit the applicable Person (if it has not been solicited in violation requirements of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding 7.9 with respect to such new written notice, except that in such case the limitations set forth three Business Day period referenced to in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i7.9(b)(ii) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (iiiii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably shall be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making ittwo Business Days.
Appears in 1 contract
Samples: Contribution and Implementation Agreement (Colony Financial, Inc.)
Change of Recommendation. The Notwithstanding anything to the contrary in this Agreement, at any time prior to the time, but not after, the Requisite Company shallVote is obtained, and shall cause the Company Subsidiaries and its and their respective officers and directors Board or the Special Committee may make a Change of Recommendation in connection with a Superior Proposal or in response to an event, occurrence, development or state of facts or circumstances occurring after the date hereof that was neither known to, and shall use its reasonable best efforts to cause its and nor reasonably foreseeable by, the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, Board or negotiations with any persons (or provision of any information the Special Committee prior to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, thateither case, if the Company Board of Directors or the Special Committee determines in good faith faith, after consultation with the Company’s outside legal counsel counsel, that the failure to waive a particular standstill provision take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, and may also terminate this Agreement pursuant to Section 8.3(a) to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal; provided, however, that the Company may, Board or the Special Committee shall not take such action unless:
(i) the Company shall have complied in all material respects with its obligations under this Section 6.2(g);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to ParentParent at least 72 hours in advance (the “Notice Period”) to the effect that the Company Board or the Special Committee intends to take such action and specifying in reasonable detail the circumstances giving rise to such proposed action, waive including, in the case such standstill solely action is proposed to be taken in connection with a Superior Proposal, the information specified by Section 6.2(d) with respect to such Superior Proposal;
(iii) the Company shall have, and shall have caused its financial and legal advisors to have, during the Notice Period, negotiated with Parent and its Representatives in good faith (to the extent necessary Parent desires to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)negotiate) to make, on a confidential basis to make such adjustments in the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of this Agreement such Acquisition that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that in the event of any material revisions to the terms of such Superior Proposal, inquiry, proposal, or offer the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and the Person making it so revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to 48 hours;
(iv) at or following the end of such Notice Period, the Company may inform itself about Board or the Special Committee shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (iii) above); and
(v) in the event of a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, inquiry, proposal, or offer the Company shall have validly terminated this Agreement in accordance with Section 8.3(a) and paid the person making itCompany Termination Fee in accordance with Section 8.5(b)(iii).
Appears in 1 contract
Change of Recommendation. The Notwithstanding Section 5.2(d), at any time prior to the earlier to occur of the Offer Closing and the Company’s receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change only if the Company Board determines in good faith, After Consultation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary, the Company Board shall not be permitted to make a Company Adverse Recommendation Change or, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(c)(ii) unless theretofore (x) the Company shall have provided to Parent and Purchaser no fewer than three (3) Business Days advance written notice of the Company’s intention to make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(c)(ii), and in the case of a Company Adverse Recommendation Change not being made in respect of a Superior Proposal, specifying the reasons therefor (a “Notice of Intended Recommendation Change”) and (y):
(i) if such Company Adverse Recommendation Change is not being made in respect of a Superior Proposal, during such three (3) Business Day period, if requested by Parent, the Company shall engage in good faith negotiations with Parent to amend the terms and conditions of this Agreement in such a manner that would enable the Company Board to determine in good faith, After Consultation, that it is no longer necessary for the Company Board to make a Company Adverse Recommendation Change; or
(ii) if such Company Adverse Recommendation Change or termination is being made in respect of a Superior Proposal:
(1) the Notice of Intended Recommendation Change shall further specify the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents relating to such Superior Proposal (it being hereby understood and agreed that any material amendment to the terms of any such Superior Proposal (including any amendment to any price term thereof), shall require a new Notice of Intended Recommendation Change and again require compliance with the requirements of this Section 5.2(e), except that the advance written notice period and corresponding references in clause (x) of this Section 5.2(e) to three (3) Business Days shall be reduced to two (2) Business Days for any such new Notice of Intended Recommendation Change); and
(2) after providing the Notice of Intended Recommendation Change, the Company shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any negotiate with Parent and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines Purchaser in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely (to the extent necessary Parent and Purchaser have notified the Company of their intention to permit negotiate) during such three (3) Business Day period (or two (2) Business Day period in the applicable Person (if it has not been solicited in violation case of Section 6.6(a)(i) or (ii)a new Notice of Intended Recommendation Change) to make, on a confidential basis to amend the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of this Agreement and the other agreements contemplated hereby; and
(iii) in the case of each of the immediately preceding clause (i) or clause (ii) of this Section 5.2(e), the Company Board shall have considered in good faith, After Consultation, any amendments to the terms and conditions of this Agreement (including any increase in the Offer Price and Merger Consideration) and the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third Business Day of such Acquisition three (3) Business Day period (or the first (1st) Business Day of such two (2) Business Day period for any such new Notice of Intended Recommendation Change) and shall have determined (A) in the case of a Superior Proposal, inquiry, proposal, or offer and the Person making it so that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if such amendments were to be given effect or (B) in the case of a Company may inform itself about such Acquisition Adverse Recommendation Change not being made in respect of a Superior Proposal, inquiryno amendment to the terms and conditions of this Agreement has been so offered by Parent which, proposalif given effect, or offer and would enable the person making itCompany Board to determine in good faith, After Consultation, that it is no longer necessary for the Company Board to make a Company Adverse Recommendation Change.
Appears in 1 contract
Change of Recommendation. The Company shallNotwithstanding anything to the contrary in this Agreement, and shall cause at any time prior to the Company Subsidiaries and its and their respective officers and directors totime, and shall use its reasonable best efforts to cause its and but not after, the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any personscondition in Section 7.1(a) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereofhas been satisfied, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration Board may make a Change of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person Recommendation in connection with such person’s consideration of an Acquisition a Superior Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead in response to an Acquisition Proposal; providedIntervening Event, thatin either case, if the Company Board of Directors determines in good faith faith, after consultation with the Company’s its financial advisor and outside legal counsel counsel, that failure to take such action would be inconsistent with the directors' fiduciary duties under applicable Law, or may terminate this Agreement pursuant to Section 8.3(a) to enter into an Alternative Acquisition Agreement with respect to such a Superior Proposal; provided, however, that the Company Board shall not take such action unless:
(i) the Company shall have complied in all material respects with this Section 6.2(g);
(ii) the Company shall have provided prior written notice (a "Determination Notice") to Parent at least five (5) business days in advance (the "Notice Period") 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 a Superior Proposal, the information specified by Section 6.2(d) with respect to such Superior Proposal;
(iii) the Company shall have, and shall have caused its financial and legal advisors to be available, during the Notice Period, for negotiations with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement such that the failure to waive take such action would no longer be inconsistent with the directors' fiduciary duties under applicable Law; provided, however, that in the event of any material revisions to the terms of such Superior Proposal, the Company shall be required to deliver a particular standstill provision new Determination Notice to Parent and to comply with the requirements of this Section 6.2(g)(iii) with respect to such new Determination Notice and the revised Superior Proposal contemplated thereby, except that the Notice Period commencing upon the delivery of such new Determination Notice shall be reduced to three (3) business days (it being understood that the delivery of any such new Determination Notice shall not shorten the original five (5) business day Notice Period);
(iv) at or following the end of such Notice Period (inclusive of any Notice Period following the delivery of any new Determination Notice(s) in accordance with Section 6.2(g)(iii)), the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that, in the case of a Change of Recommendation in connection with a Superior Proposal, such Acquisition Proposal remains a Superior Proposal (including taking into account any adjustments in the terms of this Agreement proposed by Parent in connection with Section 6.2(g)(iii) above) and that failure to take such action would be reasonably likely continue to be inconsistent with the directors’ ' fiduciary duties under applicable LawLaw (taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the end of the latest Notice Period pursuant to clause (iii) above); and
(v) in the event of a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, the Company may, shall have validly terminated this Agreement in accordance with Section 8.3(a) and prior written notice to Parent, waive or concurrently with such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to termination paid the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, Termination Fee in each case, as contemplated by this accordance with Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a8.5(b)(iii), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.
Appears in 1 contract
Change of Recommendation. The Notwithstanding anything to the contrary set forth in this Agreement, the Company Board may, prior to but not after the time the Requisite Company Vote is obtained, make a Change of Recommendation if (i) an Intervening Event has occurred or (ii) the Company receives an Acquisition Proposal that the Company Board has determined in good faith constitutes a Superior Proposal, and the Company Board has determined in good faith after consulting with its financial advisor and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law; provided that, the Company Board may not take any such action unless (1) in the case of clause (ii) above, the receipt of such Acquisition Proposal was not the result of a material breach of this Section 6.2, (2) prior to making such Change of Recommendation, the Company provides prior written notice to Parent at least five Business Days in advance (the “Change of Recommendation Notice Period”) of its intention to take such action, which notice shall, in the case of a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person making such Superior Proposal) and attach the most current unredacted version of any documents evidencing such Superior Proposal, and any material modifications to any of the foregoing, and, in the case of an Intervening Event, include a reasonably detailed description of such Intervening Event, (3) during the Change of Recommendation Notice Period the Company shall, and shall cause the Company Subsidiaries its financial advisor and its and their respective officers and directors outside counsel to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations negotiate with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines Parent in good faith after consultation with should Parent propose to make such amendments of the Company’s outside legal counsel that terms and conditions of this Agreement such that, in the failure to waive case of a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Superior Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) no longer constitutes a Superior Proposal or would reasonably be expected to result and, in a Superior Proposal and (ii) that the case of an Intervening Event, the failure to participate make such Change of Recommendation in negotiations light of such Intervening Event would no longer be inconsistent with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board under applicable Laws (in each case as determined in the good faith judgment of Directors, the Company Board after taking into account any such amendments that Parent shall have agreed to make prior to the end of the Change of Recommendation Notice Period) and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to4) the material Company Board takes into account any amendments of the terms and conditions of such this Agreement agreed to by Parent in writing prior to the end of the Change of Recommendation Notice Period; it being understood that any material amendment of any Acquisition Proposal will be deemed to be a new Acquisition Proposal, inquiryincluding for purposes of the Change of Recommendation Notice Period; provided, proposalhowever, or offer and subsequent to the Person making it so that initial Change of Recommendation Notice Period, the Company may inform itself about Change of Recommendation Notice Period shall be reduced to three Business Days and, following such Acquisition Proposal, inquiry, proposal, or offer and the person making itreduction any additional Change of Recommendation Notice Periods shall be further reduced to one Business Day.
Appears in 1 contract
Change of Recommendation. The Notwithstanding Section 5.2(d), at any time prior to the earlier to occur of the Offer Closing and the Company’s receipt of the Company Stockholder Approval, the Company Board may effect a Company Adverse Recommendation Change only if the Company Board determines in good faith, After Consultation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary, the Company Board shall not be permitted to make a Company Adverse Recommendation Change or, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section
7.1 (c)(ii) unless theretofore (x) the Company shall have provided to Parent and Purchaser no fewer than three (3) Business Days advance written notice of the Company’s intention to make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(c)(ii), and in the case of a Company Adverse Recommendation Change not being made in respect of a Superior Proposal, specifying the reasons therefor (a “Notice of Intended Recommendation Change”) and (y):
(i) if such Company Adverse Recommendation Change is not being made in respect of a Superior Proposal, during such three (3) Business Day period, if requested by Parent, the Company shall engage in good faith negotiations with Parent to amend the terms and conditions of this Agreement in such a manner that would enable the Company Board to determine in good faith, After Consultation, that it is no longer necessary for the Company Board to make a Company Adverse Recommendation Change; or
(ii) if such Company Adverse Recommendation Change or termination is being made in respect of a Superior Proposal:
(1) the Notice of Intended Recommendation Change shall further specify the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents relating to such Superior Proposal (it being hereby understood and agreed that any material amendment to the terms of any such Superior Proposal (including any amendment to any price term thereof), shall require a new Notice of Intended Recommendation Change and again require compliance with the requirements of this Section 5.2(e), except that the advance written notice period and corresponding references in clause (x) of this Section 5.2(e) to three (3) Business Days shall be reduced to two (2) Business Days for any such new Notice of Intended Recommendation Change); and
(2) after providing the Notice of Intended Recommendation Change, the Company shall, and shall cause the Company Subsidiaries and its and their respective officers and directors to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives to, immediately cease any negotiate with Parent and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines Purchaser in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely (to the extent necessary Parent and Purchaser have notified the Company of their intention to permit negotiate) during such three (3) Business Day period (or two (2) Business Day period in the applicable Person (if it has not been solicited in violation case of Section 6.6(a)(i) or (ii)a new Notice of Intended Recommendation Change) to make, on a confidential basis to amend the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of this Agreement and the other agreements contemplated hereby; and
(iii) in the case of each of the immediately preceding clause (i) or clause (ii) of this Section 5.2(e), the Company Board shall have considered in good faith, After Consultation, any amendments to the terms and conditions of this Agreement (including any increase in the Offer Price and Merger Consideration) and the other agreements contemplated hereby that may be offered in writing by Parent no later than 5:00 p.m., New York City time, on the third Business Day of such Acquisition three (3) Business Day period (or the first (1st) Business Day of such two (2) Business Day period for any such new Notice of Intended Recommendation Change) and shall have determined (A) in the case of a Superior Proposal, inquiry, proposal, or offer and the Person making it so that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if such amendments were to be given effect or (B) in the case of a Company may inform itself about such Acquisition Adverse Recommendation Change not being made in respect of a Superior Proposal, inquiryno amendment to the terms and conditions of this Agreement has been so offered by Parent which, proposalif given effect, or offer and would enable the person making itCompany Board to determine in good faith, After Consultation, that it is no longer necessary for the Company Board to make a Company Adverse Recommendation Change.
Appears in 1 contract
Change of Recommendation. The Company shall, and shall cause Neither the Company Subsidiaries and its and their respective officers and directors toBoard nor any committee thereof shall (i) fail to make, and shall use its reasonable best efforts withdraw or modify in a manner adverse to cause its and Parent, or publicly propose to withdraw or modify in a manner adverse to Parent, the Company Subsidiaries’ other Representatives toBoard Recommendation, immediately cease (ii) approve any and all solicitationletter of intent, encouragementagreement in principle, discussions, acquisition agreement or negotiations with any persons (or provision of any information to any persons) with respect similar agreement relating to any Acquisition Proposal or any inquiry(iii) approve, proposalendorse or recommend, or offer publicly propose to approve, endorse or recommend, any Acquisition Proposal (each of (i) and (iii), “Specified Conduct”). Notwithstanding the provisions of Section 6.04(a) and the foregoing provisions of this Section 6.04(g), if, (x) prior to receipt of the Company Stockholder Approval, (A) the Company Board shall have determined in good faith, after consultation with outside counsel, that compliance with the preceding sentence would reasonably be expected to lead to an Acquisition Proposal. Promptly after inconsistent with its fiduciary duties under applicable Law (a “Fiduciary Determination”), (B) the date hereofCompany Board has notified Parent in writing of the determination described in clause (A), which notice shall specify in reasonable detail the material events giving rise thereto (a “Determination Notice”), and (C) at least five (5) business days following receipt by Parent of the Determination Notice, and taking into account any revised proposal made by Parent since receipt of the Determination Notice, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforceBoard maintains its Fiduciary Determination, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if during such period after receipt by Parent of such notice, the Company Board of Directors determines has, if requested by Parent, negotiated in good faith after consultation with with, and caused the Company’s outside financial and legal counsel that the failure advisors to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines negotiate in good faith after consultation with, Parent to attempt to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6Transactions, or (y) solely to clarify or ascertain facts regarding at any time the Company Board shall have made a Fiduciary Determination in connection with a Tender Offer Communication, then the Company Board may (and not to negotiate or 1) engage in any discussions regarding of the Specified Conduct (a “Change of Recommendation”), it being understood that, for the avoidance of doubt, neither the approval or relating todelivery of a Determination Notice shall be deemed a Change of Recommendation, and/or (2) upon termination of this Agreement in accordance with Section 8.01(h) and concurrent payment of the material terms Termination Fee in accordance with Section 8.03 (it being understood and conditions agreed that such termination shall not be effective until payment of such Acquisition Termination Fee), approve and enter into an agreement relating to a Superior Proposal, inquiry, proposal, or offer and the Person making it so that . Nothing in this Section 6.04 shall permit the Company may inform itself about such Acquisition Proposal, inquiry, proposal, to terminate this Agreement except as specifically provided in Article VIII or offer and affect any other obligation of the person making itCompany under this Agreement.
Appears in 1 contract
Change of Recommendation. The Merger Agreement provides that during the Pre-Closing Period, neither the CoLucid Board nor any committee thereof shall (i)(A) fail to make, withhold, withdraw (or modify in a manner adverse to Lilly), or publicly propose to withdraw (or modify in a manner adverse to Lilly) the CoLucid Board’s recommendation to CoLucid stockholders to accept the Offer and tender their Shares pursuant to the Offer (the “Company shallBoard Recommendation”) or (B) approve, and shall cause recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”); (ii) fail to publicly reaffirm the Company Subsidiaries and its and their respective officers and directors Board Recommendation within ten business days after Xxxxx so requests in writing; or (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow CoLucid to execute or enter into any contract with respect to, and shall use its reasonable best efforts any Takeover Proposal (other than an Acceptable Confidentiality Agreement). The Merger Agreement provides that, notwithstanding anything to cause its the contrary contained in the Merger Agreement, at any time prior to the Acceptance Time, if: (i) CoLucid has received a bona fide written Takeover Proposal (which Takeover Proposal did not result from or arise out of or in connection with a breach of Section 6.6 of the Merger Agreement) from any person that has not been withdrawn and, after consultation with outside legal counsel and the CoLucid Board’s financial advisor, the CoLucid Board and the CoLucid Special Committee have determined in good faith that such Takeover Proposal is a Superior Proposal (after giving effect to all of the revisions to the terms of the Merger Agreement which may be offered by Lilly, including pursuant to clause (C) below); or (ii) there has been an Intervening Event (defined below), then (x) the CoLucid Board or the CoLucid Special Committee prior to the Acceptance Time may make a Company Subsidiaries’ other Representatives toAdverse Change Recommendation or (y) in the case of a Superior Proposal, immediately cease any and all solicitation, encouragement, discussions, or negotiations CoLucid may terminate the Merger Agreement in accordance with any persons Section 8.1(d) of the Merger Agreement in order to enter into a Specified Agreement (or provision of any information to any personsdefined below) with respect to any Acquisition Proposal or any inquirysuch Superior Proposal, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after in the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration case of an Acquisition Proposal. The Company shall enforce, each of clauses (i) and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that(ii), if and only if: (A) the Company CoLucid Board of Directors determines and the CoLucid Special Committee have determined in good faith faith, after consultation with the Company’s outside legal counsel and the CoLucid Board’s financial advisor, that the failure to waive a particular standstill provision do so would be reasonably likely to be inconsistent with the directors’ CoLucid Board’s and the CoLucid Special Committee’s fiduciary duties under applicable Law, the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation CoLucid’s stockholders Table of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.Contents
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Change of Recommendation. The Company shallNotwithstanding Section 6.02(d), and shall cause at any time prior to the Acceptance Time, the Company Subsidiaries and its and their respective officers and directors toBoard may, and shall use its reasonable best efforts subject to cause its and 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 Subsidiaries’ other Representatives to, immediately cease any and all solicitation, encouragement, discussions, or negotiations Board determines in good faith (after consultation with any persons (or provision of any information its outside legal counsel) that the failure to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that take such action would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law, (2) in the Company may, with prior written notice to Parent, waive such standstill solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation case of Section 6.6(a)(i) or (ii6.02(e)(x)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding the limitations set forth in this Section 6.6(a), if the Company receives, prior to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith (after consultation with the Company’s its outside legal counsel and financial advisors (iadvisors) that the applicable Takeover Proposal constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directorsterminates 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 Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer applicable action referred to (xin Section 6.02(e)(x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely and specifying in reasonable detail the reasons therefor (a “Notice of Intended Recommendation Change”) (which notice shall not itself constitute an Adverse Recommendation Change), and (4) the Company has complied in all material respects with the following additional covenants:
(i) if such action is being taken pursuant to clarify or ascertain facts regarding Section 6.02(e)(x), and if requested by Parent, after providing any such Notice of Intended Recommendation Change, the Company shall, and shall instruct its 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 terms of any such Superior Proposal (and not to negotiate or engage in any discussions regarding or relating toevent including any amendment to any price term thereof) shall require a new Notice of Intended Recommendation Change and compliance with the material terms and conditions other requirements of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making it.this Section 6.02
Appears in 1 contract
Samples: Merger Agreement
Change of Recommendation. The Company Neither the XXXX III Board nor any committee thereof shall (a) withhold, withdraw, modify or qualify (in each case in a manner adverse to the Sponsors), the Recommendation or (b) fail to include the Recommendation in the Proxy Statement (any such action being referred to as a “Change of Recommendation”), unless (i) the XXXX III Board or the Special Committee determines in good faith, after consultation with its financial advisor, and receipt of an opinion of outside legal counsel, that failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law, (ii) the XXXX III Board shall have provided prior written notice to the Sponsors, at least three Business Days in advance of such Change of Recommendation, that the XXXX III Board or the Special Committee intends to effect a Change of Recommendation, which notice shall specify, in reasonable detail the basis for the Change of Recommendation, (iii) after providing such notice, and prior to the Special Committee and the XXXX III Board effecting such Change of Recommendation, XXXX III shall, and shall cause its Representatives to, negotiate with the Company Subsidiaries Sponsors in good faith (to the extent the Sponsors desire to negotiate) during such three Business Day period to make any adjustments to the terms and its conditions of this Agreement as would permit the Special Committee and their respective officers the XXXX III Board not to effect a Change of Recommendation, and directors to(iv) the Special Committee shall have considered in good faith any changes to this Agreement that may be offered in writing by the Sponsors before 5:00 P.M. Pacific time on the third Business Day of such three Business Day period in a manner that would form a binding contract if accepted by XXXX III, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives tohave determined, immediately cease any and all solicitation, encouragement, discussions, or negotiations with any persons (or provision of any information to any persons) with respect to any Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal. Promptly after the date hereof, the Company shall terminate access to any physical or electronic data rooms relating to such person’s consideration of an Acquisition Proposal. The Company shall enforce, and not waive, terminate, or modify without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill, or other agreement entered into prior to the date hereof with any person in connection with such person’s consideration of an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; provided, that, if the Company Board of Directors determines in good faith after consultation with the Company’s its financial advisor and outside legal counsel counsel, that failure of the failure XXXX III Board or the Special Committee to waive effect a particular standstill provision Change of Recommendation would be reasonably likely continue to be inconsistent with the directors’ fiduciary duties under applicable Law, even if such changes were to be given effect; provided that in the Company mayevent of any material change in the circumstances giving rise to the Change of Recommendation, with prior XXXX III shall be required to deliver a new written notice to Parent, waive such standstill solely the Sponsors and to comply with the extent necessary to permit the applicable Person (if it has not been solicited in violation requirements of Section 6.6(a)(i) or (ii)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case, as contemplated by this Section 6.6. Notwithstanding 8.9 with respect to such new written notice, except that in such case the limitations set forth in this Section 6.6(a), if the Company receives, prior three Business Day period referenced to the Company Shareholder Approval being obtained, a bona fide written Acquisition Proposal or an inquiry, proposal, or offer that would reasonably above shall be expected to lead to an Acquisition Proposal that did not result from a breach of Section 6.6(a)(i) or (ii), which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors (i) constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) that failure to participate in negotiations with or provide information to the Person proposing such Acquisition Proposal would reasonably be expected to result in a breach of the fiduciary duties of the Company Board of Directors, the Company and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal, inquiry, proposal, or offer to (x) refer the inquiring, proposing or offering person to this Section 6.6, or (y) solely to clarify or ascertain facts regarding (and not to negotiate or engage in any discussions regarding or relating to) the material terms and conditions of such Acquisition Proposal, inquiry, proposal, or offer and the Person making it so that the Company may inform itself about such Acquisition Proposal, inquiry, proposal, or offer and the person making ittwo Business Days.
Appears in 1 contract
Samples: Contribution Agreement (Griffin-American Healthcare REIT III, Inc.)
