Common use of Company Adverse Recommendation Change or Company Acquisition Agreement Clause in Contracts

Company Adverse Recommendation Change or Company Acquisition Agreement. Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or permit any Affiliate of the Company to execute or enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least three (3) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal; (iii) the Company and its Representatives during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such 38031572.13 material revision (it being understood that after 3 such extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its Company Financial Advisor, that (A) such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement and (B) the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law.

Company Adverse Recommendation Change or Company Acquisition Agreement. Except as expressly permitted by this Section 6.045.03, neither the Special Committee nor the Company Board shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or permit any Affiliate of the Company Subsidiary to execute or enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company VoteShareholder Approval, the Special Committee and Company Board (acting upon the recommendation of the Special Committee) may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition AgreementAgreement that did not result from a breach of this Section 5.03, if: (i) the Company promptly notifies Parent, in writing, at least three five (35) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal Proposal, that the Special Committee or the Company Board intends to declare a Superior Proposal Proposal, and that the Special Committee or the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal; (iii) the Company and its Representatives during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such 38031572.13 material revision (it being understood that after 3 such there may be multiple extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period)); and (iv) the Company Board (acting upon the recommendation of the Special Committee) determines in good faith, after consulting with its financial advisors and outside legal counsel and its Company Financial Advisorcounsel, that (A) such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement Agreement) and (B) that the failure to take such action would be inconsistent with cause the Company Board’s Board to be in breach of its fiduciary duties under applicable Law.

Company Adverse Recommendation Change or Company Acquisition Agreement. Except as expressly permitted by this Section 6.045.04, the Company Board shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or permit any Affiliate of the Company Subsidiary to execute or enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least three (3) five Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal; (iii) the Company and its Representatives Representatives, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) five Business Days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such 38031572.13 material revision (it being understood that after 3 such there may be multiple extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its Company Financial Advisor, that (A) such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement and (B) the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable LawAgreement.

Company Adverse Recommendation Change or Company Acquisition Agreement. (i) Except as expressly permitted by this Section 6.045.04, the Company Board shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or cause or permit any Affiliate of the Company Subsidiary to execute or enter into) a Company Acquisition Agreement. ; provided that, for the avoidance of doubt, none of (A) the private determination in and of itself by the Company Board that a Takeover Proposal constitutes a Superior Proposal without any violation of this Agreement including this Section 5.04 nor (B) the delivery by the Company to Parent, Merger Sub or their respective Representatives of any notices required by and in accordance with this Section 5.04 in and of itself, shall constitute an Company Adverse Recommendation Change. (ii) Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change or and/or terminate this agreement to simultaneously enter into (or permit any Subsidiary to simultaneously enter into) a Company Acquisition AgreementAgreement with respect to a bona fide, ifunsolicited Takeover Proposal that did not result from a breach of this Section 5.04 which the Company Board has determined in good faith after consultation with its outside legal counsel and financial advisor that such Takeover Proposal constitutes a Superior Proposal, if and only if prior to taking either such action: (i) the Company promptly notifies Parent, in writing, at least three five (35) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering terminating this Agreement pursuant to Section 7.04(a) to simultaneously enter into (or causing cause a Subsidiary to simultaneously enter into) a Company Acquisition AgreementAgreement that did not result from a breach of this Section 5.04, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to terminate this Agreement pursuant to Section 7.04(a) to simultaneously enter into a Company Acquisition AgreementAgreement that did not result from a breach of this Section 5.04 (which notice shall not, by itself, constitute a Company Adverse Recommendation Change); (ii) the Company specifies provides the identity of information set forth in Section 5.04(c) with respect to such Superior Proposal, including the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and provides any related documents, including financing documents, relevant documents or agreements relating to the extent provided by the relevant party in connection with the Superior Proposalsuch proposal; (iii) the Company and its Representatives Representatives, during the Superior Proposal Notice Period, to the extent requested by Parent, negotiate with Parent in good faith with respect to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such 38031572.13 material revision (it being understood that after 3 such extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period))adjustments; and (iv) the Company Board determines in good faith, after consulting with its financial advisors and outside legal counsel and its Company Financial Advisorcounsel, that (A) such Takeover Proposal continues to constitute a Superior Proposal (after taking into account in good faith any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement Agreement) and (B) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. With respect to this Section 5.04(d)(ii), if there is any material amendment, revision or change to the terms of any such Superior Proposal (including any revision to the amount of consideration the stockholders of the Company Board’s would receive as a result of the Superior Proposal), then for each such amendment, revision or change the Company shall notify Parent of such amendment, revision or change in compliance with this Section 5.04(d)(ii) (including to provide any updated documentation or notices) by providing a new notice to Parent, and the applicable Superior Proposal Notice Period shall be extended until at least three (3) Business Days after the time that Parent receives such new notice from the Company of such amendment, revision or change, and the Company shall be required to comply again with the requirements of this Section 5.04(d)(ii) and the Company Board shall not take any such action permitted under Section 5.04(d)(ii) prior to the end of such Superior Proposal Notice Period as so extended in accordance with the terms of this Section 5.04(d)(ii). (iii) Notwithstanding anything to the contrary in the foregoing, in response to an Intervening Event that has occurred after the date of this Agreement but prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change if: (i) prior to effecting the Company Adverse Recommendation Change, the Company promptly notifies Parent, in writing, at least five (5) Business Days (the “Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Company Adverse Recommendation Change), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action, provided that in the event the Intervening Event to which this provision applies thereafter changes in any material respect, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.04(d)(iii) with respect to such new written notice, it being understood that the Intervening Event Notice Period in respect of such new written notice will be three Business Days; (ii) to the extent requested by Parent, the Company shall, and shall cause its Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to allow Parent to make such adjustments in the terms and conditions of this Agreement so that the underlying facts giving rise to, and the reasons for taking such action, cease to constitute an Intervening Event, if Parent, in its discretion, proposes to make such adjustments; and (iii) the Company Board determines in good faith, after consulting with its financial advisors and outside legal counsel, that the failure to effect such Company Adverse Recommendation Change, after taking into account in good faith any adjustments made by Parent during the Intervening Event Notice Period, would be inconsistent with its fiduciary duties under applicable Law.

Company Adverse Recommendation Change or Company Acquisition Agreement. Except as expressly permitted by this Section 6.045.03, the Company Board (upon the recommendation of the Special Committee) shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or permit any Affiliate of the Company Subsidiary to execute or enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board Board, upon the recommendation of the Special Committee, may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition AgreementAgreement that did not result from a breach of this Section 5.03, if: (i) the Company promptly notifies Parent, in writing, at least three five (35) Business Days days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a one or more Takeover Proposal Proposals, that the Company Board intends to declare a Superior Proposal Proposal, and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company specifies the identity of the party or parties making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents, to the extent provided by the relevant party in connection with the Superior Proposalnotice; (iii) the Company or the Special Committee, as applicable, and its Representatives during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal Proposal(s) ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such 38031572.13 material revision (it being understood that after 3 such there may be multiple extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period)); and (iv) the Company Board Special Committee determines in good faith, after consulting with its financial advisors and outside legal counsel and its Company Financial Advisorcounsel, that (A) such Takeover Proposal Proposal(s) continues to constitute a Superior Proposal (after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement and (B) the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable LawAgreement).

Company Adverse Recommendation Change or Company Acquisition Agreement. Except as expressly permitted by this Section 6.043.8, the Company Board shall not effect a Company Adverse Recommendation Change or adopt, recommend or declare advisable, or propose publicly to adopt, recommend or declare advisable, or allow the Company to execute or enter into (or permit any Affiliate of the Company Subsidiary to execute or enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of obtaining the Requisite Company VoteVote (if applicable), the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition AgreementAgreement that did not result from a breach of this Section 3.8, if: : (i) the Company promptly notifies ParentPurchaser, in writing, at least three five (35) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; ; (ii) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal; ; (iii) the Company and its Representatives during the Superior Proposal Notice Period, negotiate with Parent Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if ParentPurchaser, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, if there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains remain in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent Purchaser of any such 38031572.13 material revision (it being understood that after 3 such there may be multiple extensions, any further extension must only ensure there is one (1) Business Day remaining in the Superior Proposal Notice Period)); and and (iv) the Company Board determines in good faith, after consulting with its financial advisors and outside legal counsel and its Company Financial Advisorcounsel, that (A) such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by Parent Purchaser during the Superior Proposal Notice Period in the terms and conditions of this Agreement Agreement) and (B) that the failure to take such action would be inconsistent with cause the Company Board’s Board to be in breach of its fiduciary duties under applicable Law.