Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Board determines in good faith after consultation with outside legal counsel to the Cerner Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revision.
Appears in 1 contract
Samples: Offer to Purchase (Oracle Corp)
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner Company Board nor any committee thereof will (i) (A) fail to make, (B) withdraw, amend or modify, or (C) publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, Purchaser the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, Recommendation or (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL). The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner Company Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of Proposal, at any time prior to the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)Acceptance Time, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Company Board determines in good faith faith, after consultation with outside legal counsel to the Cerner Company Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Company Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” (as defined below) unless: • Cerner the Company promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days four (4) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including including, any revision in price, to ensure that at least two Business Days three business days remain in the Notice Period subsequent to the time Cerner the Company notifies Parent of any such material revision; and Table of Contents • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be a breach of its duties under applicable law or regulation; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change pursuant to the provisions of the Merger Agreement which are summarized in this paragraph unless the Company Board has (i) provided to Parent at least four business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (ii) during such four business day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.03 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two business days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations.
Appears in 1 contract
Samples: Offer to Purchase (Oracle Corp)
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner Company Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Company Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner Company Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Company Board determines in good faith faith, after consultation with outside legal counsel to the Cerner Company Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Company Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” (as defined below) unless: • Cerner the Company promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days three (3) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none ; Table of (i) Contents • the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including including, any revision in price, to ensure that at least two Business Days three (3) business days remain in the Notice Period subsequent to the time Cerner the Company notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be in breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (A) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) Business Days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations.
Appears in 1 contract
Samples: Offer to Purchase (Oracle Corp)
Change of Recommendation. The Merger Agreement provides that, except (i) Except as provided belowset forth in Section 4.02(e) or clause (ii) of this Section 4.02(f), neither the Cerner Sonoma Board nor any committee thereof will shall:
(iA) fail to makewithhold, withdraw, amend qualify or modify, modify (or publicly propose to withhold, withdraw, amend qualify or modify), in a manner adverse to Parent or PurchaserGreystone, the Sonoma Board Recommendation, or adopt, approve or recommend to propose to adopt, approve or recommend (iipublicly or otherwise) a Competing Proposal;
(B) take formal action or make any recommendation or public statement in connection with a tender offer or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act (it being understood that the Sonoma Board may refrain from taking a position with respect to a Competing Proposal until the close of business on the tenth (10th) Business Day after the commencement of a tender offer or exchange offer in connection with such Competing Proposal pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered an adverse modification of the Sonoma Board Recommendation) (each action set forth in clause (A) above and this clause (B) of this Section 4.02(f), a “Change of Recommendation”);
(C) cause or permit Sonoma to approve, endorseadopt, adopt recommend or recommendenter into, or publicly propose to approve, endorseadopt, adopt recommend or recommendenter into, any Acquisition Proposal acquisition agreement, merger agreement or Superior Proposalsimilar definitive agreement, (iii) fail to recommend against acceptance a letter of any tender offer intent, memorandum of understanding, agreement in principle or exchange offer similar document, agreement or understanding with respect thereto (other than the Offer or an Acceptable Confidentiality Agreement) relating to any other tender offer or exchange offer by Parent or PurchaserCompeting Proposal (a “Competing Proposal Agreement”) (provided, that, for the Shares within 10 Business Days after the commencement avoidance of such offerdoubt, nothing in this Section 4.02 shall permit Sonoma to adopt or enter into a Competing Proposal Agreement prior to termination of this Agreement in accordance with its terms); or
(ivD) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed action pursuant to Section 251(h7.01(d)(ii).
(ii) of Notwithstanding the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above limitations set forth in this subsection entitled “Change of Recommendation” or any other provisions of the Merger AgreementSection 4.02(f) (i), at any time prior to the Acceptance Competing Proposal Time, the Cerner BoardSonoma Board may make a Change of Recommendation if, following receipt in the case the Change of and on account Recommendation is being made as a result of a Competing Proposal, the Sonoma Board has concluded that such Competing Proposal constitutes a Superior Proposal that did not result from or arise out and Sonoma has complied with Section 4.02(e). Notwithstanding any such Change of a breach Recommendation, such Change of Section 7.02(a) Recommendation shall have no effect whatsoever on the validity of the Merger Agreement (Requisite Stockholder Approval granted pursuant to the provisions of which are summarized above in Written Consent. At any time prior to the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination receipt of the Merger Agreement,” but only Requisite Stockholder Approval, the Sonoma Board may make a Change of Recommendation if, in either casethe case such Change of Recommendation is not being made as a result of a Competing Proposal, the Cerner Sonoma Board determines has concluded in good faith after consultation with Sonoma’s outside legal counsel to the Cerner Board, and financial advisors that the failure to take such action would be a breach of its reasonably likely to be inconsistent with the fiduciary duties of the Sonoma Board to Sonoma’s stockholders under applicable lawLaw. The Merger Notwithstanding any such Change of Recommendation, unless this Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent is otherwise terminated in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version its terms, consistent with Section 146 of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) DGCL, Sonoma shall submit the Restated Sonoma Charter, the New Sonoma Stock Issuance and the identity Contribution to the stockholders of Sonoma for their consideration to adopt and approve, as applicable, by action by written consent in accordance with Section 228 of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revisionDGCL.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)
Change of Recommendation. The Merger Agreement provides that, except as provided belowthat during the Pre-Closing Period, neither the Cerner TubeMogul Board nor any committee thereof will shall: (ii)(A) fail withdraw (or modify in a manner adverse to make, withdraw, amend Adobe or modifyPurchaser), or publicly propose to withhold, withdraw, amend withdraw (or modify, modify in a manner adverse to Parent Adobe or Purchaser), the Company Board Recommendation, Recommendation or (iiB) approve, endorse, adopt recommend or recommenddeclare advisable, or publicly propose to approve, endorse, adopt recommend or recommenddeclare advisable, any Acquisition Takeover Proposal or Superior Proposal(any action described in this clause (i) being referred to as a "Company Adverse Change Recommendation"); (ii) fail to publicly reaffirm its recommendation of the Merger Agreement within ten business days after Adobe so requests in writing, provided that, unless a Takeover Proposal will have been publicly disclosed, Adobe may only make such request once every 30 days; (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow TubeMogul to execute or enter into any contract with respect to any Takeover Proposal, or requiring, or reasonably expected to cause, TubeMogul to abandon, terminate, delay or fail to recommend against acceptance of any tender offer consummate, or exchange offer that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated by the Merger Agreement (other than the Offer an Acceptable Confidentiality Agreement) or (iv) take or fail to take any other formal action or make or fail to make any recommendation or public statement in connection with a tender offer or exchange offer by Parent a third party, other than a recommendation against such offer or Purchasera "stop, look and listen" communication by the TubeMogul Board (or a committee thereof) for to the Shares within 10 Business Days stockholders of TubeMogul pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) (it being understood that the TubeMogul Board (or a committee thereof) may refrain from taking a position with respect to a Takeover Proposal until the close of business on the tenth business day after the commencement of a tender or exchange offer in connection with such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any Takeover Proposal without such action being considered a violation of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCLthis paragraph). The Merger Agreement provides that, notwithstanding anything to the provisions of the Merger Agreement summarized above contrary contained in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner Board, following receipt of and on account of : • if TubeMogul has received a Superior bona fide written Takeover Proposal that (which Takeover Proposal did not result from or arise out of a breach of the non-solicitation obligations contained in the Merger Agreement) from any person that has not been withdrawn and, after consultation with outside legal counsel and financial advisor, the TubeMogul Board has determined, in good faith, that such Takeover Proposal is a Superior Proposal, then (x) the TubeMogul Board may make a Company Adverse Change Recommendation, or (y) TubeMogul may terminate the Merger Agreement and enter into a Specified Agreement (as defined in below) with respect to such Superior Proposal, if and only if: (A) the TubeMogul Board shall have determined in good faith, after consultation with TubeMogul's outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties to TubeMogul's stockholders under applicable law or regulation; (B) TubeMogul shall have given Adobe prior written notice of its intention to make a Company Adverse Change Recommendation or terminate the Merger Agreement pursuant to Section 7.02(a8.1(e)(i) of the Merger Agreement (the provisions of which are summarized above Agreement, in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)each case, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination (a "Superior Proposal Determination Notice") (which notice shall have included a copy of the Merger Agreement,” but only if, definitive Specified Agreement (in either casethe case of clause "(y)"), the Cerner Board determines in good faith after consultation with outside legal counsel identity of the person making such Superior Proposal and a summary of the material terms and conditions of the Superior Proposal) at least four business days prior to making any such Company Adverse Change Recommendation or termination (which notice will not constitute a Company Adverse Change Recommendation) (the "Superior Proposal Notice Period"); and (C) (1) during the Superior Proposal Notice Period, Adobe may propose revisions to the Cerner Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) terms of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement other proposals so that such Acquisition Takeover Proposal ceases would cease to constitute a Superior Proposal, and TubeMogul shall have made its representatives available to, and negotiated in good faith with, Adobe with respect to such proposed revisions or other proposals, if Parentany, during such period, and (2) after the end of such period, after considering the results of such negotiations and giving effect to the proposals made by Adobe, if any, and after consultation with its outside legal counsel and financial advisor, the TubeMogul Board shall have determined, in its discretiongood faith, proposes (I) that such Takeover Proposal still is a Superior Proposal and (II) that the failure to make such adjustmentsthe Company Adverse Change Recommendation or terminate the Merger Agreement pursuant to Section 8.1(e)(i) of the Merger Agreement would be inconsistent with its fiduciary duties to TubeMogul's stockholders under applicable law or regulation (for the avoidance of doubt, with the Notice Period being extended each time there is provisions of this paragraph will also apply to every material amendment to any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revision.Takeover Proposal and require that
Appears in 1 contract
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Cerner Board of Directors of the Company nor any committee thereof will shall, directly or indirectly, (i) fail to make, withdraw(A) withdraw (or qualify, amend or modify, or publicly propose to withhold, withdraw, amend or modify, modify in a manner adverse to Parent Parent) or Purchaserpublicly propose to withdraw (or qualify, amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board Recommendationof Directors or such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company’s Board of Directors and the Special Committee may take no position with respect to an Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to in this clause) or (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made publicly or sent or given to the Company Stockholders (or any Person or Group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approveexcept as expressly provided herein, endorse, adopt approve or recommend, or publicly propose to approve, endorse, adopt approve or recommend, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (a “Company Acquisition Agreement”) (A) constituting, or providing for, any Alternative Company Transaction Proposal or Superior Proposal(B) requiring it (or that would require it) to abandon, (iii) terminate or fail to recommend against acceptance of any tender offer or exchange offer (other than consummate the Offer Merger or any other tender offer or exchange offer transaction contemplated by Parent or Purchaser) for this Agreement. Notwithstanding anything to the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above contrary set forth in this subsection entitled “Change of Recommendation” Section 5.2 or in any other provisions provision of the Merger this Agreement, at any time prior to obtaining the Acceptance TimeCompany Stockholder Approval, the Cerner BoardBoard of Directors of the Company may, following receipt of and on account of subject to compliance with Section 5.2(e), solely in response to either (x) a Company Intervening Event or (y) a Superior Proposal that did not result from or arise out of Company Proposal, make a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Company Adverse Recommendation ChangeChange or, or (iisolely in response to an Alternative Company Transaction Proposal, terminate this Agreement pursuant to Section 7.1(c)(i) terminate the Merger Agreement in order to enter concurrently into a definitive agreement with respect to such a Superior Proposal Company Proposal, if in accordance with either case the Fiduciary Termination Provision summarized below under “Termination Board of Directors of the Merger Agreement,” but only if, in either case, the Cerner Board Company determines in good faith after consultation with the Special Committee and its outside legal counsel to the Cerner Boardand financial advisor, that the failure to take such action would be a breach of likely to be inconsistent with its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revisionLaw.
Appears in 1 contract
Samples: Merger Agreement (HSN, Inc.)
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner Terremark Board nor any committee thereof will shall (i) fail to make, withdraw, amend withdraw or modify, rescind (or publicly propose to withhold, withdraw, amend or modify, modify in a manner adverse to Parent Parent), or Purchaserpublicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Board Merger and the Offer (the “Company Recommendation”), (ii) approve, endorse, adopt declare the advisability of or recommendrecommend to the holders of Shares the adoption of, or publicly propose announce an intention to approve, endorse, adopt declare the advisability of or recommendrecommend the adoption of, any Acquisition Proposal or Superior Takeover Proposal, (iii) fail or cause, authorize or permit Terremark or any of its subsidiaries to recommend against acceptance execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any tender offer or exchange offer (Takeover Proposal, other than the Offer an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve publicly propose or agree announce an intention to take any of the foregoing actions (any of the foregoing actionsaction described in clauses (i), (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL). The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, Terremark Board may at any time prior to the Acceptance Time, earlier to occur of the Cerner Board, following Offer Closing and Terremark’s receipt of and on account of the Company Stockholder Approval, effect a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Company Adverse Recommendation Change, or (ii) terminate Change only if the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Terremark Board determines in good faith faith, after consultation with outside financial and legal counsel to advisors as required by the Cerner BoardMerger Agreement, that the failure to take such action would be a breach of inconsistent with its fiduciary duties under applicable law. The Merger Agreement provides that Notwithstanding anything to the Cerner contrary, the Terremark Board will shall not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revision.a
Appears in 1 contract
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner NetSuite Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner NetSuite Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner NetSuite Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner NetSuite Board (upon the recommendation of the Transactions Committee) determines in good faith faith, after consultation with outside legal counsel to the Cerner NetSuite Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner NetSuite Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” (as defined below) unless: • Cerner NetSuite promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (iA) the determination in itself by the Cerner NetSuite Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (iiB) the delivery in itself by Cerner NetSuite to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Table of Contents Adverse Recommendation Change Notice, or (iiiC) the public disclosure of the matters described in clause (iA) or (iiB), will constitute an Adverse Recommendation Change (in the each case of each of clauses (iA), (iiB) and (iiiC), to the extent in accordance with the Merger Agreement); • Cerner NetSuite attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by XxxxxxParent, Cerner NetSuite and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two three Business Days remain in the Notice Period subsequent to the time Cerner NetSuite notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the NetSuite Board (upon the recommendation of the Transactions Committee) in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of NetSuite as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the NetSuite Board (upon the recommendation of the Transactions Committee) may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the NetSuite Board nor reasonably foreseeable by the NetSuite Board as of the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the NetSuite Board determines in good faith, after consultation with outside legal counsel to the NetSuite Board, that, in light of such Intervening Event, the failure of the NetSuite Board to effect such an Adverse Recommendation Change would be a breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the NetSuite Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the NetSuite Board has (A) provided to Parent at least five Business Days’ prior written notice advising Parent that the NetSuite Board intends to take such action and specifying the facts underlying the NetSuite Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, it being understood that neither (1) the delivery in itself by NetSuite to Parent of such notice, nor (2) the public disclosure of the matters described in clause (1), will constitute an Adverse Recommendation Change (in each case of clauses (1) and (2), to the extent in accordance with the terms of the Merger Agreement) and (B) during such five Business Day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the NetSuite Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the NetSuite Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two Business Days after requested to do so by Parent.
Appears in 1 contract
Samples: Offer to Purchase (Oracle Corp)
Change of Recommendation. The Pursuant to a meeting duly called and held, the GenTek Board, among other things, has unanimously (i) determined that the Merger Agreement provides thatand the transactions contemplated thereby, are fair to, and in the best interests of, GenTek and the stockholders of GenTek, (ii) duly approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger and the Offer, and (iii) recommended that the stockholders of GenTek accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if required by applicable law, adopt the Merger Agreement and approve the Merger (the “Company Board Recommendation”). The GenTek Board may withdraw, modify or amend the Company Board Recommendation in certain circumstances as summarized herein and as specified in detail in Section 5.4(e) of the Merger Agreement. Pursuant to the Merger Agreement, except as provided described below, neither the Cerner GenTek Board nor any committee thereof will shall (i) fail to makechange, withdrawqualify, amend withdraw or modify, or propose publicly propose to withholdchange, withdrawqualify, amend withdraw or modify, in a manner adverse to Parent or PurchaserParent, the Company Board Recommendation, (ii) approve, endorse, adopt or recommend, or propose publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of make any recommendation in connection with a tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of a recommendation against such offer, (iv) make exempt any public statement inconsistent with person from the Board Recommendationrestrictions contained in any state takeover or similar laws, including Section 203 of the DGCL, any action described in clause (i), (v) resolve or agree to take any of the foregoing actions ii), (any of the foregoing actions, an “Adverse Recommendation Change”iii) or (viiv) resolve or agree being referred to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled as a “Change of Recommendation” or (v) enter into or authorize GenTek to enter into any letter of intent, merger, acquisition, or similar agreement with respect to any Acquisition Proposal other provisions of than any confidentiality agreement to be entered into by GenTek (each a “Company Acquisition Agreement”). Under the Merger Agreement, at any time prior to the Acceptance TimeDate, the Cerner BoardGenTek Board may, following receipt of and on account of in response to a Superior Proposal that did has not result from been withdrawn or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)abandoned, may make either (i) make an Adverse a Change of Recommendation Change, or if the GenTek Board has concluded in good faith that the failure of the GenTek Board to effect a Change of Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of GenTek under applicable law and/or (ii) terminate the Merger Agreement to enter into a definitive agreement Company Acquisition Agreement with respect to such Superior Proposal (a “Superior Termination”); provided that GenTek may not effect such Change of Recommendation or a Superior Termination, in accordance each case in connection with the Fiduciary Termination Provision summarized below under “Termination a Superior Proposal, unless both of the Merger Agreement,” but only iffollowing conditions have been met: (i) GenTek shall have provided prior written notice to Parent, in either case, the Cerner Board determines in good faith after consultation with outside legal counsel at least 48 hours or such greater time as necessary to the Cerner Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent include one entire business day (the “Adverse Recommendation Change Notice”ending at midnight) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement advance (the “Notice Period”), of its intention to do so, it being understood that none effect a Change of (i) the determination Recommendation and/or Superior Termination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected response to result in a such Superior Proposal, (ii) which notice shall in addition specify the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms and conditions (including price) of any such Superior Proposal (which version or summary will be updated on a prompt basis) and including the identity of the third party Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto with the party making such Superior Proposal; and • (ii) prior to effecting such Change of Recommendation and/or Superior Termination in response to a Superior Proposal, GenTek shall, and shall cause its legal and financial advisors to, during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in to the terms and conditions of the Merger Agreement so that such Acquisition Superior Proposal ceases to constitute a Superior Proposal. Reasonable Best Efforts to Consummate the Merger; Regulatory Filings. GenTek and Parent agreed in the Merger Agreement to use their reasonable best efforts to (i) take, if or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by the Merger Agreement as promptly as practicable, (ii) obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent or GenTek or any of their respective subsidiaries, or to avoid any action or proceeding by any governmental entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution and delivery of the Merger Agreement and the consummation of the transactions contemplated therein and (iii) as promptly as reasonably practicable, and in any event within 15 business days after the date of the Merger Agreement, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement, the Offer and the Merger required under the Exchange Act (and any other applicable federal or state securities laws), the HSR Act (with a request for early termination under the HSR Act) and any other applicable law. GenTek and Parent also agreed to give any notices to third parties and use commercially reasonable efforts to obtain any third party consents necessary, proper or advisable to consummate the transactions contemplated by the Merger Agreement, required to prevent a material adverse effect from occurring to GenTek prior to or after the Effective Time and certain specified third party consents. 22 Table of Contents Additionally, Parent, in its discretionthe Purchaser and GenTek each agreed to: (i) give the other parties prompt notice of the making or commencement of any request, proposes to make such adjustmentsinquiry, investigation, action or legal proceeding by or before any governmental entity with the Notice Period being extended each time there is any material revision respect to the terms Offer, the Merger or any of a Superior Proposalthe other transactions contemplated by the Merger Agreement, including any revision in price, to ensure that at least two Business Days remain in (ii) keep the Notice Period subsequent other parties informed as to the time Cerner notifies Parent status of any such material revisionrequest, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other governmental entity regarding the Offer or the Merger. Parent, the Purchaser and GenTek also agreed to use their respective reasonable best efforts to resolve any objections that may be asserted by any governmental entity with respect to the transactions contemplated by the Merger Agreement and to use their reasonable best efforts to cause the Closing to occur as promptly as practicable, including by defending against any lawsuits, actions or proceedings, judicial or administrative, challenging the Merger Agreement or the consummation of the transactions contemplated thereby, and seeking to have any restraint or prohibition entered or imposed by any court or other governmental entity that is not yet final and nonappealable vacated or reversed. Notwithstanding the foregoing, neither Parent nor GenTek will be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, GenTek or their subsidiaries or affiliates.
Appears in 1 contract
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Cerner Board of Directors of Parent nor any committee thereof will shall, directly or indirectly, (i) fail to make, withdraw, (A) withdraw or qualify (or amend or modify, or publicly propose to withhold, withdraw, amend or modify, modify in a manner adverse to Parent the Company in any material respect) or Purchaserpublicly propose to withdraw or qualify (or amend or modify in a manner adverse to the Company in any material respect), its approval and recommendation that stockholders vote in favor of the Stock Issuance, the Board RecommendationParent Common Stock Reorganization and the Parent Common Stock Exchange or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Parent Transaction Proposal, including by, in the case of a tender or exchange offer, failing to promptly recommend rejection of such offer (any action described in this clause (i) being referred to as a “Parent Adverse Recommendation Change”) or (ii) approve, endorse, adopt approve or recommend, or publicly propose to approve, endorse, adopt approve or recommend, or allow Parent or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (a “Parent Acquisition Agreement”) (A) constituting, or relating to, any Alternative Parent Transaction Proposal or Superior Proposal(B) requiring it (or that would require it) to abandon, (iii) terminate or fail to recommend against acceptance of any tender offer or exchange offer (other than consummate the Offer Merger or any other tender offer or exchange offer transaction contemplated by Parent or Purchaser) for this Agreement. Notwithstanding anything to the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”contrary set forth in this Section 5.3(d) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions provision of the Merger this Agreement, at any time prior to obtaining the Acceptance TimeParent Stockholder Approvals, but solely in response to a Parent Intervening Event or Superior Parent Proposal, the Cerner Board, Board of Directors of Parent may make a Parent Adverse Recommendation Change if and only if all of the following receipt of and on account conditions are met:
(i) in the case of a Superior Parent Proposal, such Superior Parent Proposal that did has been made and has not result from or arise out of been withdrawn and continues to be a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or Parent Proposal;
(ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with Parent Stockholder Approvals have not been obtained;
(iii) the Fiduciary Termination Provision summarized below under “Termination Board of the Merger Agreement,” but only if, in either case, the Cerner Board determines Directors of Parent has determined in good faith faith, after consultation with its outside legal counsel to the Cerner Boardcounsel, that that, in light of such Parent Intervening Event or Superior Parent Proposal, the failure to take such action make a Parent Adverse Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties under applicable law. The Merger Agreement provides that Law;
(iv) Parent has (A) provided to the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent Company four (4) Business Days’ prior written notice (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Parent Notice Period”), of its intention to do so, it being understood that none of ) which shall state expressly (i) the determination in itself by the Cerner Board (or a committee thereof1) that an Acquisition Proposal constitutes or would reasonably be expected to result in it has received a Superior ProposalParent Proposal or that there has been a Parent Intervening Event, (ii2) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i)a Superior Parent Proposal, (ii) the material terms and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version conditions of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Parent Proposal (which version or summary will be updated on a prompt basis) including the per share value of the consideration offered therein and the identity of the third party Person or group of Persons making the Superior Parent Proposal; ), and • during shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Parent Proposal and other material documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Parent Proposal shall require a new notice, provided that the Parent Notice PeriodPeriod in connection with any such new notice shall be three (3) Business Days) and (3) that it intends to make a Parent Adverse Recommendation Change and specifying, if in reasonable detail, the reasons therefor, and (B) prior to making a Parent Adverse Recommendation Change, to the extent requested by Xxxxxxthe Company, Cerner and its financial and legal advisors negotiate with Parent engaged in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, negotiations with the Company during the Parent Notice Period being extended each time there is any to amend this Agreement, and, after such negotiations, the Board of Directors of Parent again makes the determination described in Section 5.3(d)(iii); and
(v) Parent shall have complied with Section 5.3 in all material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revisionrespects.
Appears in 1 contract
Samples: Merger Agreement (Lions Gate Entertainment Corp /Cn/)
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Cerner Company Board nor any committee thereof will shall (i) fail to make(A) change, qualify, withdraw, amend or modifywithhold, or modify (or propose publicly propose to withholdchange, qualify, withdraw, amend withhold, or modify, ) in a manner adverse to Parent or PurchaserMerger Sub the approval of this Agreement, the Merger and the other Transactions, or the recommendation by the Company Board Recommendationthat the stockholders of the Company adopt this Agreement, (iiB) approveadopt, endorseapprove or recommend (or propose publicly to adopt, adopt approve or recommend) any alternative Company Takeover Proposal or agree to take any such action, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iiiC) fail to recommend against acceptance any alternative Company Takeover Proposal that is subject to Regulation 14D under the Exchange Act (which failure to recommend shall be made by means of any tender offer or exchange offer a Solicitation/Recommendation Statement on Schedule 14D-9, if applicable, within ten (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser10) for the Shares within 10 Business Days after the commencement (determined using Rule 14d-1(g)(3) under the Exchange Act) of such offer, (ivalternative Company Takeover Proposal) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (viii) approve, recommend or otherwise declare advisable, or allow the Company or any Company Subsidiary to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar agreement relating to, an alternative Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”), or resolve or agree to change or modify take any such action. Notwithstanding anything in this Agreement to the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant contrary, but subject to Section 251(h) of 4.7(e), the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, Company Board may at any time prior to the Acceptance Time, the Cerner Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(aEffective Time (1) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make effect an Adverse Recommendation ChangeChange in response to an alternative Company Takeover Proposal and concurrently cause the Company to terminate this Agreement pursuant to Section 6.1(d)(ii), or (ii) terminate if the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal Company Board concludes in accordance good faith, after consultation with the Fiduciary Termination Provision summarized below under “Termination of Company’s financial advisor, that such Company Takeover Proposal constitutes a Superior Company Proposal and the Merger Agreement,” but only if, in either case, the Cerner Company Board determines concludes in good faith faith, after consultation with outside legal counsel to the Cerner Boardcounsel, that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make Applicable Law, or (2) effect an Adverse Recommendation Change following or terminate in response to any material event, fact or circumstance, or a material development or change in any facts or circumstances (including any acceleration or deceleration of existing changes to the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination extent of the Merger Agreement” unless: • Cerner promptly notifies Parent acceleration or deceleration), the existence, magnitude or consequences of which were not known and were not reasonably foreseeable by the Company Board at or prior to the date hereof (and not relating to any Company Takeover Proposal, which shall be governed by the foregoing clause (1)) (such material event, fact, circumstance, development or change, an “Intervening Event”) if the Company Board concludes in good faith, after consultation with outside counsel, and taking into account all such factors as the Company Board may deem appropriate, that the failure to effect such Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or and/or termination would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in breach of its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revisionfiduciary duties under Applicable Law.
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Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Cerner Board of Directors of the Company nor any committee thereof will shall, directly or indirectly, (i) fail to make, withdraw(A) withdraw (or qualify, amend or modify, or publicly propose to withhold, withdraw, amend or modify, modify in a manner adverse to Parent Parent) or Purchaserpublicly propose to withdraw (or qualify, amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board Recommendationof Directors or such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company’s Board of Directors and the Special Committee may take no position with respect to an Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to in this clause) or (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made publicly or sent or given to the Company Stockholders (or any Person or Group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approveexcept as expressly provided herein, endorse, adopt approve or recommend, or publicly propose to approve, endorse, adopt approve or recommend, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (a “Company Acquisition Agreement”) (A) constituting, or providing for, any Alternative Company Transaction Proposal or Superior Proposal(B) requiring it (or that would require it) to abandon, (iii) terminate or fail to recommend against acceptance of any tender offer or exchange offer (other than consummate the Offer Merger or any other tender offer or exchange offer transaction contemplated by Parent or Purchaser) for this Agreement. Notwithstanding anything to the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above contrary set forth in this subsection entitled “Change of Recommendation” Section 5.2 or in any other provisions provision of the Merger this Agreement, at any time prior to obtaining the Acceptance TimeCompany Stockholder Approval, the Cerner BoardBoard of Directors of the Company may, following receipt of and on account of subject to compliance with Section 5.2(e), solely in response to either (x) a Company Intervening Event or (y) a Superior Proposal that did not result from or arise out of Company Proposal, make a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Company Adverse Recommendation ChangeChange or, or (iisolely in response to an Alternative Company Transaction Proposal, terminate this Agreement pursuant to Section 7.1(c)(i) terminate the Merger Agreement in order to enter concurrently into a definitive agreement with respect to such a Superior Proposal Company Proposal, if in accordance with either case the Fiduciary Termination Provision summarized below under “Termination Board of Directors of the Merger Agreement,” but only if, in either case, the Cerner Board Company determines in good faith after consultation with the Special Committee and its outside legal counsel to the Cerner Boardand financial advisor, that the failure to take such action would be a breach of likely to be inconsistent with its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revisionLaw.
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Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Cerner Company Board nor any committee thereof will (i) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent or Purchaser, the Board Recommendation, (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days ten (10) business days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the Acceptance Time, the Cerner Company Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”)Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision applicable termination provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Company Board determines in good faith faith, after consultation with outside legal counsel to the Cerner Company Board, that the failure to take such action would be a breach of its fiduciary duties under applicable law. The Merger Agreement provides that the Cerner Company Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” (as defined below) unless: • Cerner the Company promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days three (3) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by XxxxxxParent, Cerner the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including including, any revision in price, to ensure that at least two Business Days three business days remain in the Notice Period subsequent to the time Cerner the Company notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any Table of Contents way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be a breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (A) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Parent, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) business days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations. The Merger Agreement provides that, in connection with the continuing operation of the business of the Company and its Subsidiaries, from the date of the Merger Agreement until the Effective Time, subject to applicable law, the executive officers of the Company will consult with Parent in good faith on a reasonable and prompt basis to report material (individually or in the aggregate) operational developments, the status of relationships with customers, resellers, partners, suppliers, licensors, licensees, distributors and others having material business relationships with the Company, the status of ongoing operations and other matters reasonably requested by Parent pursuant to procedures reasonably requested by Parent; provided that no such consultation will affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under the Merger Agreement. In addition, the Merger Agreement provides that the Company will promptly notify Parent of any written notice or other written communication (or, to the knowledge of the Company, any other notice or communication) from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by the Merger Agreement, any notice or other communication from any governmental authority in connection with the transactions contemplated by the Merger Agreement, any Proceeding commenced or, to the Knowledge of the Company (as defined in the Merger Agreement), threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that would have been required to have been disclosed pursuant to the Merger Agreement or which relates to the consummation of the transactions contemplated by the Merger Agreement, any written notice or other written communication (or, to the Knowledge of the Company, any other notice or communication) from any major customer or major supplier that such major customer or major supplier is terminating its relationship with the Company or any of its Subsidiaries as a result of the Table of Contents transactions contemplated by the Merger Agreement or any inaccuracy of any representation or warranty or breach of covenant or agreement in the Merger Agreement that would reasonably be expected to cause any of the Offer Conditions not to be satisfied. The Merger Agreement provides that, subject to certain limitations on premiums, for six years after the Effective Time, Parent will, or will cause the Surviving Corporation to, maintain and extend all existing officers’ and directors’ liability insurance of the Company (or equivalent prepaid “tail” or “runoff” policies obtained prior to the Effective Time) with respect to acts or omissions occurring prior to the Effective Time covering each Person covered as of the date of the Merger Agreement by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of the Merger Agreement; provided that neither Parent nor Purchaser shall be obligated to pay annual premiums in excess of 200% of the amount the Company paid for its officers’ and directors’ liability insurance policy. The Merger Agreement provides that, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurred, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company and its Subsidiaries to: (i) each indemnification agreement disclosed pursuant to the Merger Agreement with any person who is now, or has been at any time prior to the date of the Merger Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (an “Indemnified Party”); and (ii) any indemnification provision and any exculpation provision set forth in the certificate of incorporation or bylaws of the Company as in effect on the date of the Merger Agreement, subject in each case to any limitations imposed by the certificate of incorporation or bylaws of the Company as in effect on the date of the Merger Agreement and as imposed from time to time under applicable law. The Merger Agreement provides that the obligations of Parent and the Surviving Corporation under the provisions of the Merger Agreement which are summarized in this paragraph will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the written consent of such Indemnified Party and that the Indemnified Parties will be third-party beneficiaries of those provisions and entitled to enforce the covenants contained in those provisions.
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Samples: Offer to Purchase (Oracle Corp)
Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Cerner Board of Directors of Liberty nor any committee thereof will shall, directly or indirectly, (i) fail to make, withdraw, (A) withdraw or qualify (or amend or modify, or publicly propose to withhold, withdraw, amend or modify, modify in a manner adverse to Parent the Company) or Purchaserpublicly propose to withdraw or qualify (or amend or modify in a manner adverse to the Company), the approval, recommendation or declaration of advisability by such Board Recommendationof Directors or such committee thereof of this Agreement or that the Liberty Ventures Stockholders vote in favor of the Split-Off, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Liberty Ventures Transaction Proposal, including by, in the case of a tender or exchange offer, failing to promptly recommend rejection of such offer or (C) fail to publicly reaffirm its approval, recommendation or declaration of advisability by such Board of Directors that the Liberty Ventures Stockholders vote in favor of the Split-Off within five (5) Business Days after the Company so requests in writing if an Alternative Liberty Ventures Transaction Proposal or any modification thereto shall have been made publicly or sent or given to the Liberty Ventures Stockholders (or any Person or group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Liberty Ventures Transaction Proposal) (any action described in this clause (i) being referred to as a “Liberty Adverse Recommendation Change”)) or (ii) approve, endorse, adopt approve or recommend, or publicly propose to approve, endorse, adopt approve or recommend, or allow Liberty or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (a “Liberty Ventures Acquisition Proposal or Superior Proposal, (iiiAgreement”) fail to recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Board Recommendation, (v) resolve or agree to take any of the foregoing actions (any of the foregoing actions, an “Adverse Recommendation Change”) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed a confidentiality agreement entered into pursuant to Section 251(h5.3(b)(i)) of (A) constituting, or relating to, any Alternative Liberty Ventures Transaction Proposal or (B) requiring it (or that would require it) to abandon, terminate or fail to consummate the DGCLtransactions contemplated by this Agreement. The Merger Agreement provides that, notwithstanding Notwithstanding anything to the provisions of the Merger Agreement summarized above contrary set forth in this subsection entitled “Change of Recommendation” Section 5.3(d) or in any other provisions provision of the Merger this Agreement, at any time prior to obtaining the Acceptance TimeLiberty Stockholder Approval, solely in response to a Liberty Ventures Intervening Event or Superior Liberty Ventures Proposal, the Cerner Board, following receipt Board of and on account Directors of Liberty (or any committee thereof) may make a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Superior Proposal Provisions”), may (i) make an Liberty Adverse Recommendation Change, or if and only if all of the following conditions are met:
(i) in the case of a Superior Liberty Ventures Proposal, such Superior Liberty Ventures Proposal has been made and has not been withdrawn and continues to be a Superior Liberty Ventures Proposal;
(ii) terminate the Merger Agreement to enter into Liberty Stockholder Approval has not been obtained;
(iii) the Board of Directors of Liberty (or a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement,” but only if, in either case, the Cerner Board determines committee thereof) has determined in good faith faith, after consultation with its outside legal counsel to the Cerner Boardand a financial advisor of nationally recognized reputation, that that, in light of such Liberty Ventures Intervening Event or Superior Liberty Ventures Proposal, the failure to take such action make a Liberty Adverse Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties under applicable law. The Merger Agreement provides that Law;
(iv) Liberty has (A) provided to the Cerner Board will not be permitted to make an Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent Company five (5) Business Days’ prior written notice (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Liberty Notice Period”), of its intention to do so, it being understood that none of which notice shall state expressly (i) the determination in itself by the Cerner Board (or a committee thereof1) that an Acquisition Proposal constitutes or would reasonably be expected to result in it has received a Superior ProposalLiberty Ventures Proposal or that there has been a Liberty Ventures Intervening Event, (ii2) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i)a Superior Liberty Ventures Proposal, (ii) the material terms and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version conditions of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Liberty Ventures Proposal (which version or summary will be updated on a prompt basis) including the per share value of the consideration offered therein and the identity of the third party Person or group of Persons making the Superior Liberty Ventures Proposal; ), and • that Liberty shall have provided to the Company contemporaneously with the delivery of such notice a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Liberty Ventures Proposal and other material documents (it being understood and agreed that any amendment (or subsequent amendment) to the financial terms, including but not limited to the proposed purchase price, or to any other material term of such Superior Liberty Ventures Proposal shall each require Liberty to provide a new notice to the Company in accordance with this clause (iv), provided that the Liberty Notice Period in connection with any such new notice shall be three (3) Business Days (the “Amended Liberty Notice Period”)) and (3) that it intends to make a Liberty Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor, and (B) prior to making a Liberty Adverse Recommendation Change, during the Liberty Notice Period or the Amended Liberty Notice Period, if as applicable, to the extent requested by Xxxxxxthe Company, Cerner and its financial and legal advisors negotiate with Parent engaged in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, negotiations with the Company during the Liberty Notice Period being extended each time there is any material revision to the terms of a Superior Proposalor Amended Liberty Notice Period, including any revision in priceas applicable, to ensure that at least two Business Days remain amend this Agreement, and considered in good faith any bona fide offer (a “Company Offer”) by the Notice Period subsequent Company to Liberty and, after such negotiations or good faith consideration of such Company Offer, the time Cerner notifies Parent Board of Directors of Liberty (or any such committee thereof) again makes the determination described in Section 5.3(d)(iii); and
(v) Liberty shall have complied with this Section 5.3 in all material revisionrespects.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Liberty Interactive Corp)
