Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time: (i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if: (1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail; (2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and (3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification. (ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if: (1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law; (2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3; (3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days); (4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and (5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 3 contracts
Samples: Merger Agreement (Zix Corp), Merger Agreement (True Wind Capital, L.P.), Merger Agreement (Open Text Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence with respect to the Company and its Subsidiaries, taken as a whole, that (A) was not known to, or reasonably foreseeable by, the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) as of the date hereof and becomes known by the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) prior to obtaining the Company Stockholder Approval (or, if known, the consequences of which were not known or reasonably foreseeable to the Company Board as of the date of this Agreement); and (B) does not involve or relate to (x) the receipt, existence or terms of any Acquisition Proposal (or any proposal or Inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal) and (y) changes in the market price or trading volume of the Shares or the fact that the Company meets or exceeds internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four (4) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), ) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement so that to obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement proposed by Parent and its Representatives to make a presentation Merger Sub and other information provided by Parent and Merger Sub in response to the Company Board regarding notice described in clause (1) of this Agreement Section 5.3(d)(i), in each case, that are offered in writing by Parent and any adjustments with respect thereto Merger Sub, no later than 11:59 p.m. (to U.S. Central Time) on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Merger Sub’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall automatically recommence and be extended for two three (3) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written an Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(d) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only if:
(1) however, that the Company Board (or a committee thereof) determines shall not take any action described in good faith the foregoing clauses (after consultation with its financial advisor and outside legal counselx) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;or (y) unless:
(21) the Company Company, its Subsidiaries and each of its and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written an Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and Merger Sub and other information provided by Parent and Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentParent and Merger Sub, no later than 11:59 p.m. (U.S. Central time Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal, Proposal (which shall be deemed to include any change to the financial terms of such proposal) the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(d)(ii)(2), the Company Board (or a duly authorized committee thereofthereof acting with the full force and authority of the Company Board) must shall have concluded in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(d).
Appears in 2 contracts
Samples: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, may effect a Company Board Recommendation Change in response to an Intervening Event if any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Special Committee or the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or a committee thereof(b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event”), if the Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) Special Committee no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) Special Committee has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board Board, upon the recommendation of the Special Committee, may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Vista Equity Partners Fund Viii, L.P.), Merger Agreement (Duck Creek Technologies, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with if the Company has received a bona fide written Acquisition Proposal that the Company Board (or the Company Special Committee) has determined in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal, then the Company Board (or the Company Special Committee) may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal or (B) authorize the Company to terminate this Agreement to enter into a definitive Alternative Acquisition Agreement with respect to such Acquisition Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or the Company Special Committee) shall not take any action described in the foregoing clauses (A) and (B) unless:
(1) following the Notice Period, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereofSpecial Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that, after taking into account any revisions to this Agreement made or proposed by Parent in writing, the failure to do so would be inconsistent with its fiduciary duties pursuant reasonably expected to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that cause the Company Board (or a committee thereofCompany Special Committee) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detailviolate its fiduciary duties under applicable Law;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereofthe Company Special Committee) has (A) received a written Acquisition Superior Proposal that has not been withdrawn; and (B) concluded intends to take the actions described in good faith that such Acquisition Proposal constitutes a Superior Proposal; and clauses (CA) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this (B) of Section 5.3(d)(ii5.3(e)(i) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or terminationactions, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents relating to such Acquisition Proposal and Proposal; (ii) prior during the Notice Period (including as may be extended pursuant to effecting the last sentence of this Section 5.3(e)(ii)(3)), the Company and its Representatives have kept Parent and its Representatives reasonably informed of the status of such Company Board Recommendation Change Acquisition Proposal and the material terms of any such Acquisition Proposal (including promptly after receipt providing to Parent copies of any additional or terminationrevised Acquisition Agreements), and (iii) the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or the Company Special Committee) would no longer determine that the failure to make a Company Board Recommendation Change in response to such Acquisition Proposal would cease be reasonably expected to constitute a Superior Proposalcause the Company Board (or Company Special Committee) to violate its fiduciary duties under applicable Law; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(i)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be the longer of two Business Days);
(4) at Days and the end number of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided Business Days remaining in the final proviso of the foregoing Section 5.3(d)(ii)(3Notice Period)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii);
(ii) other than in connection with a bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or the Company Special Committee) may effect a Company Board Recommendation Change of the kind set forth in clause (A) or (D) of the definition thereof in response to an Intervening Event if the Company Board (or the Company Special Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to cause the Company Board (or Company Special Committee) to violate its fiduciary duties under applicable Law; provided, however, that the Company Board (or the Company Special Committee) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least three Business Days in advance to the effect that the Company Board (or the Company Special Committee) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(e)(ii), which notice will specify the applicable Intervening Event in reasonable detail; and
(2) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such three Business Day period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or the Company Special Committee) would no longer determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be reasonably expected to cause the Company Board (or Company Special Committee) to violate its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Vitamin Shoppe, Inc.), Merger Agreement (Liberty Tax, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(A) the Company has provided prior written notice to Parent at least four (4) Business Days in advance to the effect that the Company Board (or a committee thereof) intends to effect a Company Board Recommendation Change in response to an Intervening Event, which notice shall specify the basis for such Company Board Recommendation Change, including all material information available to the Company with respect to such Intervening Event; and
(B) prior to effecting such Company Board Recommendation Change in response to an Intervening Event, (1) the Company and its Representatives, during such four (4) Business Day period, have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement in such a manner that would obviate the need to effect such Company Board Recommendation Change and (2) the Company Board shall have considered in good faith any proposal by Parent to make adjustments to the terms and conditions of this Agreement, and shall have determined in good faith (after consultation with its outside legal counsel), that even after giving effect to such adjustments proposed by Parent, the failure to effect a Company Board Recommendation Change would continue to be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; or
(ii) if the Company has received an Acquisition Proposal that did not result from a breach of Section 5.3(a) or Section 5.3(b) (other than a de minimis breach) that the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal, then the Company Board may (x) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; or (y) cause the Company to terminate this Agreement pursuant to applicable Law if Section 8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (x) and only if(y) unless:
(A) (1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”4) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(A), the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in subclauses (Ax) received a written Acquisition Proposal that has not been withdrawn; or (By) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination5.3(c)(ii), including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents definitive agreements relating to such Acquisition Proposal Proposal; and (ii2) prior to effecting such Company Board Recommendation Change or terminationtermination with respect to such Acquisition Proposal, (x) the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination with respect to such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account the Company Board shall have considered in good faith any proposal by Parent to make adjustments to the terms and conditions of this Agreement Agreement, and related Transaction Documents shall have determined in good faith (after consultation with its financial advisors and outside legal counsel), that even after giving effect to such adjustments proposed by Parent such Superior Proposal still constitutes a Superior Proposal and other information provided by Parent during the failure to either (x) effect a Company Board Recommendation Change in connection therewith or (y) terminate this Agreement to enter into such Acquisition Proposal Notice Period, in each casewould continue to be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update modification or supplement amendment to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(ii)(A) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being will be extended for an additional two (2) Business Days);
(4) at the end Days after notification of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)change.
Appears in 2 contracts
Samples: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Oak Street Health, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 5:00 p.m. Central time at the last day end of the Event Notice Periodsuch five Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 5:00 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two four Business Days);
; and (4b) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisor and conditions of this Agreement and any other information provided by Parentoutside legal counsel) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Forescout Technologies, Inc), Merger Agreement (Forescout Technologies, Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, may effect a Company Board Recommendation Change in response to an Intervening Event if any material event, occurrence or development or material change in circumstances with respect to the Company and its Subsidiaries, taken as a whole, that (A) was not actually known to, or reasonably expected by, the Special Committee or the Company Board as of the date hereof; and (B) does not relate to (1) any Acquisition Proposal; or a committee thereof(2) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (B) may be considered and taken into account) (each such event, an “Intervening Event”), if the Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) Special Committee no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and after the date hereof that the Company Board (or a committee thereof) Special Committee has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board Board, upon the recommendation of the Special Committee, may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) ), upon the recommendation of the Special Committee, has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including include the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying with respect to complying with its obligation to pay the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Restaurant Brands International Limited Partnership), Merger Agreement (Carrols Restaurant Group, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, however, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event in reasonable detailEvent;
(2) prior to effecting such Company Board Recommendation Change, during such three (x3) Business Day period, the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so in such a manner that would obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation)Event; and
(3) following such Event Notice Periodthree (3) Business Day period, taking into account such adjustments offered by Parent (if any), the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parentcounsel) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would continue to reasonably likely be inconsistent with its fiduciary duties pursuant under applicable Law (it being understood that in the event of any material development in the facts and circumstances relating to applicable Law; provided, that each time material modifications to the such Intervening Event occurEvent, the Company shall notify Parent will be required to deliver a new written notice and a new three (3) Business Day notice period as described in clauses (1) and (2) above will commence, during which period the Company will be required to comply with the requirements of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.anew); or
(ii) if the Company has received a bona fide written Acquisition Proposal that did does not result from a breach of this Section 5.3 5.4(a) or (b) that the Company Board has determined in good faith (after consultation with its financial advisors and that outside legal counsel) constitutes a Superior Proposal, then the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only ifhowever, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counseladvisors) that the failure to do so would be reasonably likely to be inconsistent with its the directors’ fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.4 with respect to such Superior Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four three (3) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) has received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CB) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii8.1(h) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of identify the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Superior Proposal and include the material terms thereof and copies of all material relevant documents agreements relating to such Acquisition Proposal and Superior Proposal;
(ii4) prior to effecting during such Company Board Recommendation Change or terminationthree (3) Business Day period, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) has negotiated with Parent and its Representatives in good faith (to the extent that Parent desires has requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease ceases to constitute a Superior Proposal; and and
(25) taken following such three (3) Business Day period, taking into account any such adjustments offered by Parent (if any), the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that the terms and conditions of failure to make such a Company Board Recommendation Change or to so terminate this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 8.1(h), as applicable, would continue to be reasonably likely to be inconsistent with the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, directors’ fiduciary duties under applicable Law (it being understood that (a) in the event of any material revision, amendment, update or supplement amendment relating to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and a new three (3) Business Day notice period as described in clauses (3) and (4) above will commence, during which period the Company will be required to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
clause (4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iiianew).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zymergen Inc.), Merger Agreement (Ginkgo Bioworks Holdings, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Shareholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances of the Company that in any such case is material to the Company and its Subsidiaries taken as a whole that was (A) not known to, or reasonably foreseeable by, the Company Board on the date hereof (or if known or reasonably foreseeable to the Company Board prior to the date hereof, the consequences of which were not known or reasonably foreseeable to the Company Board prior to the date hereof) and that becomes known to the Company Board prior to the receipt of the Company Shareholder Approval; and (B) does not relate to any Acquisition Proposal or any matter relating thereto or consequence thereof (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law Law, and if and only if:
(1a) the Company has provided prior written notice to the Parent at least four Business Days in advance (the “Event Notice Period”) in advance ), to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.1(d)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2b) prior to effecting such Company Board Recommendation Change, during the Event Notice Period, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yA) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, Representatives must have (A) negotiated with the Parent and its Representatives in good faith (to the extent that the Parent requests desires to so negotiate) to make allow the Parent to offer such adjustments to the terms and conditions of this Agreement so that to obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding shall have taken into account any adjustments to the terms and conditions of this Agreement proposed by the Parent and any adjustments with respect thereto (to other information provided by the extent Parent, in each case, that are offered in writing by the Parent requests to make such a presentation)by no later than 11:59 p.m., Eastern time, on the last day of the Event Notice Period; and
(3c) following such the Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account the Parent’s proposed revisions (if any) to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify the Parent of such modification and the time period set forth in the preceding clause (2) Event Notice Period shall recommence and (it being understood that the Event Notice Period in respect of such new notification will be extended for two Business Days from the day of such notification.Days); and
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only ifhowever, that the Company Board (or a committee thereof) shall not take such action unless:
(1a) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2b) the Company and each of its Subsidiaries and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.1;
(3c) (i) the Company has provided prior written notice to the Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.1(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal and a copy of the proposed definitive agreements between the Company and the Person making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal ; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with the Parent and its Representatives in good faith (to the extent that the Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) permitted the Parent and its Representatives to make a presentation to the Company Board regarding, and taken into account any adjustments to the terms and conditions of of, this Agreement and related Transaction Documents proposed by the Parent and other information provided by the Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, the Parent by no later than 11:59 p.m. Central time p.m., Eastern time, on the last day of the Proposal Notice Period; provided, it being understood however, that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material revision (a “Material Revision”)), the Company will be required to deliver a new written notice to the Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.1(d)(ii)(c) (other than the requirement of a presentation as contemplated by clause (ii)(2) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” Period in respect of such new written notice being will be two Business Days);
(4d) at the end of the Proposal following such Notice Period (Period, including any subsequent Proposal Notice Period with respect to a Material Revision as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)clause (c), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account the Parent’s proposed revisions (if any) to the terms and conditions of this Agreement and any other information provided by ParentAgreement) reaffirmed its determination shall have determined that such the Acquisition Proposal is continues to be a Superior Proposal; and
(5e) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i7.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii7.3(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the delivery of the Written Consent:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be is inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided that, the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detail;basis for such Company Board Recommendation Change; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, Representatives have (A) negotiated been available for three Business Days to negotiate with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and other agreements related to the Transactions in such a manner that would obviate the need to effect a Company Board Recommendation Change; or
(ii) if the Company has received an Acquisition Proposal that the Company Board (or a committee thereof) no longer determines has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, that, the Company Board (or a committee thereof) shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be is inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (A) received a written Acquisition Proposal that has not been withdrawn; or (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination5.3(e)(ii), including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents agreements relating to such Acquisition Proposal Proposal; and (ii) for at least three Business Days (such notice period, including any extension thereto in accordance with this Section 5.3(e)(ii)(3), the “Notice Period”) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the other agreements in connection with the Transactions in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change or termination; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i)8.1, including paying the Company Termination Fee in accordance with Section 8.3(b)(iii)8.3. For the avoidance of doubt, a Company Board Recommendation Change shall have no effect on the effectiveness of the Written Consent.
Appears in 2 contracts
Samples: Merger Agreement (Datto Holding Corp.), Merger Agreement (Datto Holding Corp.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe shall specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, must have (A) negotiated been available to negotiate with Parent and its Representatives in good faith (and negotiated to the extent that Parent desires and requests to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to under applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide fide, written Acquisition Proposal that did not result from a breach breach, in any material respect, of this Section 5.3 and that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor and outside legal counsel) is that such Acquisition Proposal constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, Acquisition Proposal in each case case, if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(d)(ii)(2), the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (A) received a written Acquisition Proposal that has not been withdrawn; or (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination), including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (and negotiated to the extent that Parent desires and requests to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update modifications or supplement amendments (other than immaterial modifications or amendments) to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification or amendment), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(53) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Haynes International Inc), Merger Agreement (Haynes International Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event or development or material change in circumstances that has materially improved or materially improves, or would be reasonably likely to materially improve the business, financial condition, assets and liabilities or results of operations of the Company Group, taken as a whole, in each case, that was (A) not known to, or reasonably foreseeable by, the Company Board as of the Agreement Date; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the Agreement Date, or changes after the Agreement Date in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account); (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Equity Commitment Letter, the failure Guaranty and/or the Debt Documents to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and its Representatives to make a presentation other information provided by Parent in response to the Company Board regarding notice described in clause (1) of this Agreement and any adjustments with respect thereto Section 5.3(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. (to Pacific Time) on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(i)(2) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Agreement, the Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time (Pacific Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its determination that such Acquisition Proposal is a Superior Proposalfiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Instructure Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Company Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the The Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence that (A) was not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not involve or relate to (I) the receipt, existence or terms of any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal), (II) any event, fact, circumstance, development or occurrence relating to Parent, Merger Sub, the Guarantors or any of their respective affiliates, (III) changes in the market price or trading volume of the Shares in and of themselves, or (IV) the fact, in and of itself, that the Company meets, exceeds, or fails to meet in any quantifiable respect, any internal or analyst’s projections, guidance, budgets, expectations, forecasts or estimates for any period (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its independent financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law (it being understood that any such determination in and of itself shall not be deemed a Company Board Recommendation Change) and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), 5.3(e)(i) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter and/or the Guaranty so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make such a Company Board Recommendation Change in response to such Intervening Event would no longer be inconsistent with its the directors’ exercise of their fiduciary duties pursuant to under applicable Law; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Equity Commitment Letter and/or the Guaranty proposed by Xxxxxx and Merger Sub and other information provided by Xxxxxx and Merger Sub in response to the notice described in clause (1) of this Section 5.3(e)(i), in each case, that are offered in writing by Parent and its Representatives to make Merger Sub, no later than 11:59 p.m. (Eastern Time) on the last day of the Event Notice Period, in a presentation manner that would constitute a binding agreement between the parties if accepted by the Company; provided that each time a material modification to the Intervening Event occurs, the Company Board regarding shall notify Parent of such modification and comply with the requirements of this Agreement Section 5.3(e)(i) and any adjustments with respect thereto the time period set forth in the preceding clause (to 1) shall recommence and be extended for three (3) Business Days from the extent that Parent requests to make day of such a presentation)notification; and
(3) following such Event Notice Period, including any subsequent Event Notice Period as provided in the final proviso of the foregoing Section 5.3(e)(i)(2), the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Xxxxxx Sub’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if If the Company has received a bona fide written Acquisition Proposal from any Person that did not result result, directly or indirectly, from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its independent financial advisor and outside legal counsel) is a Superior ProposalProposal (it being understood that any such conclusion in and of itself shall not be deemed a Company Board Recommendation Change), then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(c) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that neither the Company Board nor any committee thereof shall take any action described in each case if and only ifthe foregoing clauses (x) or (y) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with Company, its financial advisor Subsidiaries and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its their respective Representatives has have complied in all material but de minimis respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) has received a written bona fide Acquisition Proposal that has not been withdrawn; (B) has concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or such termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter and/or the Guaranty so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Equity Commitment Letter and/or the Guaranty proposed by Parent and Merger Sub and other information provided by Parent and Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentParent and Merger Sub, no later than 11:59 p.m. Central time (Eastern Time) on the last day of the Proposal Notice Period; provided, it being understood however, that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal (which shall be deemed to include any change to the financial terms of such Acquisition Proposal, ) the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(2), the Company Board (or a committee thereof) must shall have concluded in good faith (after consultation with its independent financial advisor and outside legal counsel and taking into account ParentXxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(c).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this AgreementAgreement but subject to compliance with this Section 5.3, at any time prior until the earlier to occur of the Offer Acceptance Timevalid termination of this Agreement pursuant to Article VIII and Parent’s receipt of the Written Consent:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event (within the meaning of clause (A) of the definition of “Company Board Recommendation Change”) if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, however, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detailbasis for such Company Board Recommendation Change;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Commitment Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change; and
(3) at the end of the four Business Day period and prior to taking any such action, the Company Board (or a committee thereof) no longer determines has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Commitment Letters, and has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) ), that such Intervening Event remains in effect and the failure to make effect a Company Board Recommendation Change in response to such Intervening Event would continue to be reasonably likely to be inconsistent with its the Company Board’s fiduciary duties pursuant under applicable Law if such changes proposed by Parent were to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Lawgiven effect; provided, that each time in the event of any material modifications to the changes regarding any Intervening Event occurEvent, the Company shall notify be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(i) with respect to such modification and new written notice, except that the time period advance written notice obligation set forth in the preceding clause Section 5.3(d)(i)(1) shall be reduced to two (2) shall recommence and be extended for two Business Days from the day of such notification.Days; or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and 5.3(b) (provided that for purposes of the first sentence of Section 5.3(b) such breach was not immaterial), that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) is constitutes a Superior ProposalProposal and the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or and/or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with or following the termination of this Agreement; provided, in each case if and only if:
(1) however, that the Company Board (or a committee thereof) determines shall not take any action described in good faith the foregoing clauses (after consultation with its financial advisor and outside legal counselA) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;or (B) unless:
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(31) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(d)(ii)(1), the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (A) received a written Acquisition Proposal that has not been withdrawn; or (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination), including the identity of the Person or Group making such Acquisition ProposalSuperior Proposal (except to the extent prohibited by the terms of an Acceptable Confidentiality Agreement entered into prior to the date of this Agreement), the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents agreements relating to such Superior Proposal (including any Alternative Acquisition Proposal Agreements); and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Commitment Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change or termination; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalSuperior Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(1) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);; and
(42) at the end of the Proposal Notice Period (including and prior to taking any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))such action, the Company Board (or a committee thereof) must have has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Commitment Letters, and has determined in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisors and conditions of this Agreement and any other information provided by Parentoutside legal counsel), that (x) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
Proposal and (5y) in the event of any termination of this Agreement in order failure to cause or permit take such action would continue to be reasonably likely to be inconsistent with the Company or any of its Subsidiaries Board’s fiduciary duties under applicable Law if such changes proposed by Parent were to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)be given effect.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
; and (4b) the Company Board, at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)after consultation with its financial advisor and outside legal counsel), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approvals:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a an authorized committee thereof) may effect a Company Board Recommendation Change in response to any material event or material change in circumstances with respect to the Company that (A) was not known or reasonably foreseeable to the Company Board as of the date of this Agreement; and (B) does not relate to any Acquisition Proposal (each such event, an “Intervening Event”; provided, that an Intervening Event shall not include any act or omission of the Parent taken in compliance with the terms of this Agreement, including Section 6.2 and Section 6.20), if the Company Board (or a an authorized committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so in light of such Intervening Event would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only if:
(1A) the Company has provided prior written notice to the Parent at least four (4) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a an authorized committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.5(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detaildetail and the reasons for such Company Board Recommendation Change;
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four (4) Business Day period, must have (A) negotiated with the Parent and its Representatives in good faith (to the extent that the Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a an authorized committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to under applicable Law; and (B) permitted the Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that the Parent requests to make such a presentation); and
(3C) following if the Parent shall have delivered to the Company during such Event Notice Periodfour (4) Business Day period a written and binding offer to modify the terms of this Agreement, the Company Board (or a any authorized committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined in good faith, after considering the terms of such offer by the Parent, that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change in light of such Intervening Event would still be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.;
(ii) if the Company has received a an unsolicited, written bona fide written Acquisition Proposal that did not result resulting from a breach of this Section 5.3 and 5.5, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counselcounsel and financial advisor) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to in accordance with Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalAcquisition Proposal (and prior to, or concurrently with, such termination pay the Company Termination Fee set forth in Section 8.3(b)(ii)), in each case if and only if:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law;
(2B) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.5 with respect to such Acquisition Proposal;
(3C) (i1) the Company has provided prior written notice to the Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (Ax) received a written bona fide Acquisition Proposal that has not been withdrawn; (By) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (Cz) resolved to effect a Company Board Recommendation Change or to terminate this Agreement in accordance with Section 8.1(h) pursuant to this Section 5.3(d)(ii5.5(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group of “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal (in each case to the extent not previously provided by the Company to the Parent); and (ii2) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1i) negotiated with the Parent and its Representatives in good faith (to the extent that the Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2ii) taken into account any adjustments permitted the Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that the Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to the Parent and to comply again with the requirements of this Section 5.3(d)(ii)(35.5(d)(ii)(C) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of any such new written notice being two will be three (3) Business Days);
(4D) at following the end of the Proposal such Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must shall have considered in good faith (after taking into account Parent’s proposed any revisions to the terms and conditions of this Agreement made in a written offer binding upon the Parent, and any other information provided by Parent) reaffirmed its determination shall have determined in good faith that such Acquisition Proposal is continues to constitute a Superior ProposalProposal and, after consultation with outside counsel, the failure to effect a Company Board Recommendation Change or to terminate this Agreement to accept the Alternative Acquisition Agreement would be inconsistent with its fiduciary duties under applicable Law; and
(5E) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii8.3(b)(ii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Ellie Mae Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date of this Agreement; or (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Cvent Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event (within the meaning of clause (A) of the definition of “Company Board Recommendation Change”) if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto, in accordance with this Section 5.3(c)(i), the “Intervening Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detail;basis for such Company Board Recommendation Change; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to during such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodthat, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of the Intervening Event to which this provision applies thereafter changes in any material revision, amendment, update or supplement to such Acquisition Proposalrespect, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(i) with respect to such new written notice (with notice, it being understood that the “Proposal Intervening Event Notice Period” in respect of such new written notice being two will be three Business Days);; and
(43) at the end of the Proposal Intervening Event Notice Period (including and prior to taking any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))such action, the Company Board (or a committee thereof) must have has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in good faith (after taking into account Parentconsultation with its financial advisors and outside legal counsel), that the failure to effect a Company Board Recommendation Change would continue to be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law if such changes proposed revisions by Parent were to be given effect; or
(ii) if the terms and conditions Company has received an Acquisition Proposal that did not result from a non-de minimis breach of this Agreement Section 5.3 and any other information provided by Parentthat the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) reaffirmed its determination that such Acquisition Proposal is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; and
or (5B) in cause the event of any termination of Company to terminate this Agreement pursuant to Section 8.1(h) (Superior Proposal) in order to cause or permit the Company or any of its Subsidiaries to concurrently enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided that the Company Board shall not take any action described in the foregoing clauses (A) and (B) unless:
(1) the Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law;
(2) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(2), the “Acquisition Proposal Notice Period”) to the effect that the Company Board intends to take the actions described in clauses (A) or (B) of Section 5.3(c)(ii), including the identity of the Person or Group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements (including any Alternative Acquisition Agreements) relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Acquisition Proposal Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination; provided that, in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms (including the form, amount and timing of payment of consideration) or other material terms of such proposal shall be deemed a material modification), the Company will have validly terminated be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(c)(ii)(2) with respect to such new written notice, it being understood that the “Acquisition Proposal Notice Period” in respect of such new written notice will be three Business Days; and
(3) at the end of the Acquisition Proposal Notice Period and prior to taking any such action, the Company Board has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in accordance good faith (after consultation with Section 8.1(iits financial advisors and outside legal counsel), including paying that (i) such Acquisition Proposal continues to constitute a Superior Proposal and (ii) the Termination Fee in accordance failure to take such action would continue to be reasonably likely to be inconsistent with Section 8.3(b)(iii)the Company Board’s fiduciary duties under applicable Law if such changes proposed by Parent were to be given effect.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change of the type described in clauses (A), (C) and (D) of the definition thereof in response to any material event, fact, circumstance, development or occurrence that was (A) not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal); or (b) the fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Financing Letters and/or the failure Guaranties to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranties proposed by Parent and its Representatives to make a presentation other information provided by Parent in response to the Company Board regarding notice described in clause (1) of this Agreement and any adjustments with respect thereto Section 5.3(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. (to Pacific time) on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Financing Letters and/or the Guaranties) shall have determined in good faith that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(e)(i)(3) with respect to such new written notice (it being understood that the “Event Notice Period” in respect of such modification and the time period set forth in the preceding clause new written notice will be three (23) shall recommence and be extended for two Business Days from the day of such notificationDays).
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Financing Letters and/or the Guaranties so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Financing Letters and/or the Guaranties proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time (Pacific time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business Days);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement Agreement, the Financing Letters and/or the Guaranties and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change or to terminate this Agreement would reasonably be expected to be inconsistent with its determination that such Acquisition Proposal is a Superior Proposalfiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Cloudera, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, development, discovery, change or circumstance with respect to the Company that (A) was not known to, or reasonably expected by, the Company Board as of the date of this Agreement; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (an “Intervening Event”) (it being understood that the foregoing clause (b) will not prevent or otherwise affect a determination that any event, development, discovery, change or circumstance underlying such fact or changes referred to in clause (b) has resulted in or contributed to an Intervening Event Event), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five (5) Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) would no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior ProposalProposal and which did not result from any breach of this Section 5.3, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”), which notice shall state (A) to that the effect Company has received a bona fide Acquisition Proposal that has not been withdrawn and that the Company Board (or a committee thereof) has concluded in good faith (Aafter consultation with its financial advisor and outside legal counsel) received constitutes a written Acquisition Proposal that has not been withdrawnSuperior Proposal; (B) concluded in good faith that to the extent not previously provided to Parent pursuant to Section 5.3(f), the material terms of such Acquisition Proposal, the identity of the Person or group of Persons making such Acquisition Proposal constitutes a Superior and copies of all material documents relating to such Acquisition Proposal; and (C) resolved that the Company Board (or a committee thereof) intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision revisions to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal ; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives an opportunity to make a presentation to the terms and conditions of Company Board (or a committee thereof) regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parentthat, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any revisions to the financial terms or any other material revision, amendment, update term or supplement to condition of such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with except that the “Proposal Notice Period” Period in respect of such new written notice being two shall be three (3) Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), Day and the Company Board will not be required to permit Parent and its Representatives an opportunity to make a presentation as contemplated by clause (or a committee thereofii)(2) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposalabove); and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change of the type described in clauses (A), (C) and (D) of the definition thereof in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so take such action would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:;
(1A) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i4.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, have (Ax) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that and/or the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Financing Letters to obviate the failure to make a need for such Company Board Recommendation Change and (y) taken into account any adjustments to the terms and conditions of this Agreement and/or the Financing Letters proposed by Xxxxxx and other information provided by Parent in response to such Intervening the notice described in clause (A) of this Section 4.3(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. Pacific Time on the last day of the Event Notice Period, in a manner that would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make constitute a presentation to binding agreement between the Company Board regarding this Agreement and any adjustments with respect thereto (to parties if accepted by the extent that Parent requests to make such a presentation)Company; and
(3C) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parentand/or the Financing Letters) shall have determined in good faith that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time that material modifications or developments with respect to the Intervening Event occur, the Company shall notify deliver a new written notice to Parent and comply with the requirements of this Section 4.3(e)(i) with respect to such new written notice (it being understood that the “Event Notice Period” in respect of such modification and the time period set forth in the preceding clause new written notice will be three (23) shall recommence and be extended for two Business Days from the day of such notificationDays).
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or Proposal and/or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so take such action would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.34.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or and/or to terminate this Agreement pursuant to this Section 5.3(d)(ii7.1(h) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or and/or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, Proposal and the price and other material terms of such Acquisition Proposal and will include copies of all relevant documents relating to such Acquisition Proposal and (iias well as written summaries of any material oral communications addressing such matters not otherwise covered by such documents);
(4) prior to effecting such Company Board Recommendation Change or and/or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement and/or the Financing Letters so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents and/or the Financing Letters proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time Pacific Time on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(34.3(e)(ii) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business DaysDays following receipt of such written notice);; and
(45) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)4.3(e)(ii)(4), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account ParentXxxxxx’s proposed revisions to the terms and conditions of this Agreement and/ or the Financing Letters and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change and/or to terminate this Agreement would be inconsistent with its determination that such Acquisition Proposal is a Superior Proposalfiduciary duties pursuant to applicable Law; and
(56) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i7.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii7.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (New Relic, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change (described in clauses (A), (B) or (D) of the definition thereof, as applicable) in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1A) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detailbasis for such Company Board Recommendation Change;
(2B) after giving such notice and prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, have (A) negotiated has been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such enable Parent to propose adjustments to the terms and conditions of this Agreement so such that the failure to effect a Company Board Recommendation Change would no longer be inconsistent with the Board’s fiduciary duties under applicable Law; and
(C) at the end of the five Business Day period and prior to taking any such action, the Company Board (or a committee thereof) no longer determines has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement, and has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) ), that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such effect a Company Board Recommendation Change would continue to be inconsistent with its the Board’s fiduciary duties pursuant under applicable Law if such changes proposed by Parent were to applicable Lawbe given effect; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written an Acquisition Proposal (that did not result from a breach of this Section 5.3 and 5.3) that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (By) authorize cause the Company to terminate this Agreement pursuant to and in accordance with Section 8.1(i8.1(h) in order to enter into an a definitive Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, that the Company Board shall not take any action described in each case if the foregoing clauses (x) and only if(y) unless:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be is inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3B) (iI) the Company has provided prior written notice to Parent at least four five Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(B), the “Proposal Notice Period”) to the effect that the Company Board intends to take the actions described in clauses (x) or a committee thereof(y) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement5.3(c)(ii), which notice will describe the basis for such Company Board Recommendation Change or terminationas applicable, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant agreements, term sheets, financing commitments and any other documents or written communications relating to such Acquisition Proposal Proposal; and (iiII) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such enable Parent to propose adjustments to the terms and conditions of this Agreement so such that such Acquisition Proposal the failure to effect a Company Board Recommendation Change or termination, as applicable, would cease to constitute a Superior Proposalno longer be inconsistent with the Board’s fiduciary duties under applicable Law; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(ii)(B) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);; and
(4C) at the end of the Proposal Notice Period (including five Business Day period and prior to taking any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))such action, the Company Board (or a committee thereof) must have has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement, and has determined in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisors and conditions of this Agreement and any other information provided by Parentoutside legal counsel), that (x) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
Proposal and (5y) in the event of any termination of this Agreement in order failure to cause or permit take such action would continue to be inconsistent with the Company or any of its Subsidiaries Board’s fiduciary duties under applicable Law if such changes proposed by Parent were to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)be given effect.
Appears in 1 contract
Samples: Merger Agreement (Poshmark, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this AgreementSection 5.3, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, however, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event in reasonable detailEvent;
(2) prior to effecting such Company Board Recommendation Change, during such five (x5) Business Day period, the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that would obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation)Event; and
(3) following such Event Notice Periodfive (5) Business Day period, the Company Board (or a committee thereof) (after consultation with its financial advisor advisors and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Financing Letters and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two three (3) Business Days from the day of such notification.; or
(ii) if the Company has received a an unsolicited, written bona fide written Acquisition Proposal that did not result from the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a breach of this Section 5.3 and that Superior Proposal, then the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or and/or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h); and/or (C) cause the Company to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A), (B) or (C) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Superior Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) has received a written an Acquisition Proposal that has not been withdrawn; (B) has concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) has resolved to effect a Company Board Recommendation Change or pursuant to this Section 5.3(d)(ii) and to terminate this Agreement pursuant to this Section 5.3(d)(ii8.1(h) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of identify the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Superior Proposal and include the material terms thereof and copies of all relevant documents agreements relating to such Acquisition Proposal Superior Proposal; and (ii) prior to effecting such Company Board Recommendation Change or terminationduring the Notice Period, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) has negotiated with Parent and its Representatives in good faith (to the extent that Parent desires has requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);and
(4) at the end of the Proposal following such Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisors and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Financing Letters and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its determination fiduciary duties under applicable Law; provided that such each time material modifications to the terms of an Acquisition Proposal is determined to be a Superior Proposal; and
Proposal are made (5) in it being understood that any improvement to the event financial terms of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposalproposal shall be deemed a material modification), the Company will have validly terminated this Agreement shall notify Parent of such modification and the time period set forth in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)preceding clause (3) shall recommence and be extended for three (3) Business Days from the day of such notification.
Appears in 1 contract
Samples: Merger Agreement (Del Frisco's Restaurant Group, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its directors’ fiduciary duties pursuant to under applicable Law if and only ifLaw; provided that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event in reasonable detail;Event; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yA) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three-Business Day period, have (A) has negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change and (B) the Company Board has taken into account any adjustments to the terms and conditions of this Agreement or the Financing Letters proposed by Parent and other information provided by Parent in response to the notice described in clause (1) of this Section 5.3(e)(i); or
(ii) if the Company has received an Acquisition Proposal that the Company Board (or a committee thereof) no longer determines has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, ; provided that the Company Board shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its directors’ fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (A) received a written Acquisition Proposal that has not been withdrawn; or (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; of Section 5.3(e)(ii) and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or terminationtherefor, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant agreements and documents relating to such Acquisition Proposal and Proposal; (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior Proposal; Company Board Recommendation Change or termination and (2iii) in determining whether to effect a Company Board Recommendation Change or termination, the Company Board has taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents or the Financing Letters proposed by Parent and other information provided by Parent during in response to the notice described in clause (i) of this Section 5.3(e)(ii)(3), as applicable. For the avoidance of doubt, (x) Parent shall only be entitled to one Notice Period for each Acquisition Proposal Notice Period, in each case, that are offered in writing by Parent, and (y) no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such the terms or conditions of any Acquisition Proposal, Proposal from the Company will same Person or Group shall be required to deliver considered a new written notice to Parent and to comply with Acquisition Proposal for the requirements purposes of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii5.3(e)(ii)(3).
Appears in 1 contract
Samples: Merger Agreement (Cambrex Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior ProposalProposal (which, for the avoidance of doubt, is governed exclusively by clause (ii) below), the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material effect, event, development, occurrence or change in circumstances with respect to the Company that (A) was not known to the Company Board as of the date of this Agreement (or if known to the Company Board as of the date of this Agreement, the consequences of such effect, event, development, occurrence, or change in circumstances event were not reasonably foreseeable by, the Company Board as of the date of this Agreement), and (B) does not relate to any Acquisition Proposal or other inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal (each such event, an “Intervening Event”); provided that “Intervening Event” shall exclude any event, change or development to the extent (i) consisting of or resulting from a breach of this Agreement by the Company or any of its Subsidiaries, (ii) relating to changes in the price of the shares of Company Common Stock, in and of itself (however, the underlying reasons for such changes may constitute an Intervening Event Event), (iii) relating to the fact that, in and of itself, the Company exceeds any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period (provided, that the underlying reasons for the Company exceeding such projections, estimates or expectations may constitute an Intervening Event) or (iv) relating to Parent or any of its Affiliates, if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement (which, if accepted by the Company would be binding on Parent and Merger Sub) so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (By) authorize and cause the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case case, if and only if:
(1) in the case of a Company Board Recommendation Change, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each such Acquisition Proposal was not solicited in material breach of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3(b);
(3) (iA) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (AI) received a written bona fide Acquisition Proposal that has not been withdrawn; (BII) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CIII) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or terminationtermination in reasonable detail, including consideration relating thereto and the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of the current drafts of all relevant material documents relating to such Acquisition Proposal (including those relating to the sources of financing therefor)(provided that any fee letters that are customarily redacted with respect thereto may be redacted); and (iiB) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement (which, if accepted by the Company would be binding on Parent and Merger Sub) so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Natus Medical Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance TimeCompany obtaining the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two three Business Days);
; and (4b) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisor and conditions of this Agreement and any other information provided by Parentoutside legal counsel) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Lifelock, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and obtaining the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material change, circumstance, event, effect, development or occurrence with respect to the Company or any of its Subsidiaries that (A) was not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not relate to (1) any Acquisition Proposal (or any proposal that could constitute or is reasonably expected to lead to an Acquisition Proposal or Inquiry); or (2) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (2) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (Equity Commitment Letter or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure Limited Guarantee to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Equity Commitment Letter or the Limited Guarantee proposed by Parent and its Representatives to make a presentation other information provided by Parent in response to the Company Board regarding notice described in clause (1) of this Agreement and any adjustments with respect thereto (to Section 5.3(d)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after taking into account, in consultation with its the Company’s financial advisor and outside legal counsel and taking into account Parentcounsel, Xxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined determined, after consultation with the Company’s outside legal counsel, that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize provided, however, that the Company to terminate this Agreement pursuant to Section 8.1(iBoard (or a committee thereof) to enter into an Alternative Acquisition Agreement with respect to shall not take any such Superior Proposal, in each case if and only ifaction unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Subsidiaries and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or terminationChange, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or terminationChange, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter or the Limited Guarantee so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Equity Commitment Letter or the Limited Guarantee proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);; and
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parentaccount, in consultation with the Company’s financial advisor and outside legal counsel, Xxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) reaffirmed its determination that shall have determined that, after consultation with the Company’s outside legal counsel, the failure of the Company Board (or a committee thereof) to make such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of Company Board Recommendation Change or to terminate this Agreement in order would reasonably be expected to cause or permit the Company or any of be inconsistent with its Subsidiaries fiduciary duties pursuant to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Atlas Technical Consultants, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to the Parent Entities at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with the Parent Entities and its their Representatives in good faith (to the extent that the Parent requests Entities desire to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and (B) permitted the Parent Entities and its their Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that the Parent Entities requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to the Parent Entities at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with the Parent Entities and its their Representatives in good faith (to the extent that the Parent desires Entities desire to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted the Parent Entities and their Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that the Parent and other information provided by Parent during the Proposal Notice PeriodEntities request to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to the Parent Entities and to comply with the requirements of this Section 5.3(d)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Pluralsight, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior ProposalProposal (which, for the avoidance of doubt, is governed exclusively by clause (ii) below), the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any effect, event, development, occurrence or change in circumstances with respect to the Company that (A) was not known to the Company Board as of the date of this Agreement and (B) does not relate to any Acquisition Proposal (each such event, an “Intervening Event Event”), if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least five Business Days in advance to the effect that the Company Board has (A) so determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(e)(i), which notice will describe the applicable Intervening Event in reasonable detail; and
(2) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such five Business Day period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board no longer determines that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable law; or
(ii) if the Company has received a bona fide Acquisition Proposal that the Company Board has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (x) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; or a committee thereof(y) authorize and cause the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, in each case if and only if:
(1) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detaillaw;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (iA) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (AI) received a written bona fide Acquisition Proposal that has not been withdrawn; (BII) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CIII) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or terminationtermination in reasonable detail, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant material documents relating to such Acquisition Proposal Proposal; and (iiB) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii). The Company shall keep confidential any proposals made by Parent to modify the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required by applicable Law to be disclosed in any Company SEC Reports.
Appears in 1 contract
Samples: Merger Agreement (Blue Nile Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Shareholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change (other than of the kind set forth in clause (B) of the definition thereof) in response to an Intervening Event if the Company Table of Contents Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be inconsistent with expected to cause the Company Board to violate its fiduciary duties pursuant to under applicable Law if and only ifLaws; provided that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance of effecting such Company Board Recommendation Change to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i) absent any revision to the terms and conditions of this Agreement and any Ancillary Agreement pursuant to this Section 5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three (3) Business Day period, have (A) negotiated are reasonably available to negotiate with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that and any Ancillary Agreement as would permit the Company Board (or a committee thereof) to no longer determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would reasonably be expected to cause the Company Board to violate its fiduciary duties under applicable Laws; and
(3) following such three (3) Business Day period, after taking into account any revisions to this Agreement and any Ancillary Agreement agreed to by Parent in writing, the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make effect a Company Board Recommendation Change (other than of the kind set forth in clause (B) of the definition thereof) in response to such Intervening Event would reasonably be inconsistent with expected to cause the Company Board to violate its fiduciary duties pursuant to under applicable LawLaws; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement providing for the Acquisition Transaction contemplated by such Acquisition Proposal (and the Company may terminate this Agreement pursuant to Section 8.1(h), including paying the Company Termination Fee in accordance with respect to such Superior Proposal, Section 8.3(b)(iii)); provided that the Company Board shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) following the Notice Period, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that, after taking into account any revisions to this Agreement and any Ancillary Agreement agreed to by Parent in writing, the failure to do so would reasonably be inconsistent with its expected to result in a breach of the Company Board’s fiduciary duties pursuant to under applicable LawLaws;
(2) the Company and each such Acquisition Proposal did not result from a material breach of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3(b); and
(3) (i) the Company has provided prior written notice (it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed to be a Company Board Recommendation Change) to Parent at least four three (3) Business Days in advance of the Company Board taking any of the actions described in the foregoing clauses (A) or (B) (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CB) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which Section 8.1(h); (ii) such notice will describe the basis for such Company Board Recommendation Change or termination, including has included the identity of the Third Person or Group Persons making such Acquisition Proposal, the price and other material terms and conditions of such Acquisition Proposal and include has attached a copy of any Acquisition Proposal (including the financing contemplated by such Acquisition Proposal), copies of all relevant documents the Alternative Acquisition Agreement and any other Table of Contents document relating to such Acquisition Proposal provided by the Third Person or Persons making such Acquisition Proposal; and (iiiii) prior to effecting such Company Board Recommendation Change or terminationtermination of this Agreement, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated are reasonably available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so and the Ancillary Agreements as would permit the Company Board to determine that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any modification or revision (or proposed written modification or revision) to the price, conditions or other material revision, amendment, update or supplement to terms of such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice amended or modified Acquisition Proposal (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be the longer of two (2) Business Days);
(4) at Days and the end number of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided Business Days remaining in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iiicurrent notice period).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and then if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each such Acquisition Proposal did not result from a breach of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;; and
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms and conditions of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments provided Parent and its Representatives with an opportunity to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days, provided that such new notice shall in no event shorten the original three Business Day notice period);
; and (4b) the Company Board, at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in after consultation with the final proviso of the foregoing Section 5.3(d)(ii)(3)Company’s financial advisor and outside legal counsel), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1A) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a duly authorized committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2B) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal and with respect to the party making such Acquisition Proposal; and
(3C) (i1) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a duly authorized committee thereof) has (Aa) received a written Acquisition Proposal that has not been withdrawn; (Bb) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (Cc) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).this
Appears in 1 contract
Samples: Merger Agreement (Echelon Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1A) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detail;basis for such Company Board Recommendation Change; and
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated has been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Equity Commitment Letter in such a manner that would obviate the need to effect a Company Board Recommendation Change; or
(ii) if the Company has received an Acquisition Proposal that the Company Board (or a committee thereof) no longer determines has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (By) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, that the Company Board (or a committee thereof) shall not take any action described in each case if the foregoing clauses (x) and only if(y) unless:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be is inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3B) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(B), the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (Ax) received a written Acquisition Proposal that has not been withdrawn; or (By) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination5.3(c)(ii), including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents agreements relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Equity Commitment Letter in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change or termination; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(ii)(B) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a bona fide, written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1A) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i6.4(d)(i), which notice will describe the applicable Intervening Event in reasonable detail;; and
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide fide, written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during or after the Transaction Solicitation Period, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i9.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2B) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;6.4 with respect to such Acquisition Proposal; and
(3C) (ix) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide, written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii6.4(d)(ii) absent any revision to the terms and conditions of this AgreementAgreement as contemplated by clause (y)(1) of this Section 6.4(d)(ii)(C), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition ProposalProposal (unless any such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or Group that is in effect on the date of this Agreement), the price and other material terms of such Acquisition Proposal and include copies of all relevant documents proposed agreements and financing commitments (to the extent provided to the Company) relating to such Acquisition Proposal Proposal; and (iiy) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(36.4(d)(ii)(C) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
; and (4b) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisor and conditions of this Agreement and any other information provided by Parentoutside legal counsel) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or Table of Contents termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Apptio Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Shareholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any change, event, development, effect or change in circumstances that is material to the Company and its Subsidiaries taken together as a whole, that (a) was not known to or reasonably foreseeable by the Company Board on the date of this Agreement and becomes known to the Company Board prior to the receipt of the Company Shareholder Approval and (b) does not relate to (i) any Acquisition Proposal or any matter relating thereto or consequence thereof, or (ii) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings, or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (ii) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1a) the Company has provided prior written notice to the Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.1(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2b) prior to effecting such Company Board Recommendation Change, during such Event Notice Period, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yA) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, Representatives must have (A) negotiated with the Parent and its Representatives and/or the Guarantors in good faith (to the extent that the Parent requests desires to so negotiate) to make allow the Parent and/or the Guarantors to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Equity Commitment Letter and/or the failure Guarantee to make obviate the need to effect a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and shall have taken into account any adjustments with respect thereto (to the extent terms and conditions of this Agreement, the Equity Commitment Letter and/or the Guarantee proposed by the Parent and/or the Guarantors and other information provided by the Parent and/or the Guarantors in response to the notice described in clause (a) of this Section 5.1(e)(i), in each case, that are offered in writing by the Parent requests to make such and/or the Guarantors, in a presentation)manner that would constitute a binding proposal between the parties if accepted by the Company, by no later than 11:59 p.m., Eastern time, on the last day of the Event Notice Period; and
(3c) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account the Parent’s and/or Guarantors’ proposed revisions (if any) to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter and any other information provided by Parentthe Guarantee, as applicable) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify the Parent of such modification and the time period set forth in the preceding clause (2) Event Notice Period shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1a) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2b) the Company and each of its Subsidiaries and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.1 with respect to such Acquisition Proposal;
(3c) (i) the Company has provided prior written notice to the Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.1(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with the Parent and its Representatives and/or the Guarantors in good faith (to the extent that the Parent desires to so negotiate) to make discuss such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter and/or the Guarantee so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) permitted the Parent and its Representatives to make a presentation to the Company Board regarding, and taken into account any adjustments (if any) to the terms and conditions of of, this Agreement and related Transaction Documents Agreement, the Equity Commitment Letter and/or the Guarantee proposed by Parent and/or the Guarantors and other information provided by the Parent and/or the Guarantors during the Proposal Notice Period, in each case, that are offered in writing by Parentthe Parent and/or the Guarantors, in a manner that would constitute a binding proposal between the parties if accepted by the Company, by no later than 11:59 p.m. Central time p.m., Eastern time, on the last day of the Proposal Notice Period, it being understood ; provided that (a) in the event of any material revision, amendment, update or supplement modifications to any Acquisition Proposal (it being understood that any change to the material financial terms of such Acquisition Proposalproposal shall be deemed a material modification (a “Material Revision”)), the Company will be required to deliver a new written notice to the Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.1(e)(ii)(c) (other than the requirement of a presentation as contemplated by clause (ii)(2) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4d) at the end of the Proposal following such Notice Period (Period, including any subsequent Proposal Notice Period with respect to a Material Revision as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(c), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and/or Guarantors proposed revisions to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter and/or the Guarantee) shall have determined that the Acquisition Proposal continues to be a Superior Proposal, and in the case of a Company Board Recommendation Change, that the failure to effect such Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law (it being understood and agreed to that if after such consultation the Company Board shall have determined that the Acquisition Proposal no longer continues to be a Superior Proposal, the Company may promptly (and in any other information provided by Parentevent no later than two days thereafter) reaffirmed its determination inform the Third Person that made such Acquisition Proposal is a Superior Proposalof the revisions to this Agreement proposed by the Parent pursuant to Section 5.1(e)(ii)(c)); and
(5e) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i7.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii7.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Intricon Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and then if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(c)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event or development or material change in circumstances that was (A) not actually known to the Company Board as of the date hereof (or if known, the effect of which was not actually known by the Company Board); and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be inconsistent with expected to violate its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined that an Intervening Event has occurred; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to negotiateso negotiate and has made its Representatives available) to make such adjustments offered by Parent to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) ), taking into account any such adjustments (which adjustments, to the extent accepted and executed and delivered by the Company, would be binding on Parent), no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would reasonably be inconsistent with expected to violate its fiduciary duties obligations pursuant to applicable Law; law and (B) permitted if Parent so requests in a timely fashion, in good faith considered permitting, and to the extent permitted, provided reasonable opportunity for, Parent and its Representatives to make a presentation to the Company Board during such three Business Day period regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation)this Agreement; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be inconsistent with expected to violate its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3(d) with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any acceptable revision (which revision, to the extent accepted and executed and delivered by the Company, would be binding on Parent) to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents the definitive agreement and material ancillary agreements, including written financing commitments, in the Company’s possession relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Mobileiron, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, development, discovery, change or circumstance with respect to the Company that (A) was not known to, or reasonably expected by, the Company Board as of the date of this Agreement; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (an “Intervening Event”) (it being understood that the foregoing clause (b) will not prevent or otherwise affect a determination that any event, development, discovery, change or circumstance underlying such fact or changes referred to in clause (b) has resulted in or contributed to an Intervening Event Event), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two (2) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two (2) Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) would no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior ProposalProposal and which did not result from any material breach of this Section 5.3, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four three (3) Business Days in advance (the “Proposal Notice Period”), which notice shall state (A) to that the effect Company has received a bona fide Acquisition Proposal that has not been withdrawn and that the Company Board (or a committee thereof) has concluded in good faith (Aafter consultation with its financial advisor and outside legal counsel) received constitutes a written Acquisition Proposal that has not been withdrawnSuperior Proposal; (B) concluded in good faith that to the extent not previously provided to Parent pursuant to Section 5.3(f), the material terms of such Acquisition Proposal, the identity of the Person or group of Persons making such Acquisition Proposal constitutes a Superior and copies of all material documents relating to such Acquisition Proposal; and (C) resolved that the Company Board (or a committee thereof) intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision revisions to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal ; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives an opportunity to make a presentation to the terms and conditions of Company Board (or a committee thereof) regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parentthat, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any revisions to the financial terms or any other material revision, amendment, update term or supplement to condition of such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with except that the “Proposal Notice Period” Period in respect of such new written notice being two shall be one (1) Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), Day and the Company Board will not be required to permit Parent and its Representatives an opportunity to make a presentation as contemplated by clause (or a committee thereofii)(2) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposalabove); and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Nutraceutical International Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an any Intervening Event Event, if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law if and only ifLaw; provided, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, during such Event Notice Period, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yA) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, Representatives must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Equity Commitment Letter, the failure Guaranty and/or the Debt Documents to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and shall have taken into account any adjustments with respect thereto (to the extent terms and conditions of this Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent in response to the notice described in clause (1) of this Section 5.3(e)(i), in each case, that are offered in writing by Parent requests to make such in a presentation)manner that would constitute a binding agreement between the parties if accepted by the Company, by no later than 11:59 p.m., Pacific Time, on the last day of the Event Notice Period; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) Event Notice Period shall recommence and be extended for two (2) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clause (A) or (B) unless:
(1) with respect to the actions described in the foregoing clauses (A) and (B), the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two (2) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including include the identity of the Person or Group “group” of Persons making such Acquisition ProposalProposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Persons that is in effect on the Agreement Date), the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1I) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2II) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by ParentParent in a manner that would constitute a binding agreement between the parties if accepted by the Company, by no later than 11:59 p.m. Central time p.m., Pacific Time, on the last day of the Proposal Notice Period; provided, it being understood (x) that neither the Company, any of its Affiliates or any of their respective Representatives may disclose to any Person or “group” of Persons making an Acquisition Proposal the specific price per share of any offer of Parent pursuant to this Section 5.3(e)(ii)(3) unless and until a definitive agreement with respect to such offer is executed by the Company (aprovided, however, that, for the avoidance of doubt, this clause (x) shall not prevent or limit in any respect the Company, its Affiliates or their respective Representatives from notifying any such Person or “group” of Persons that its Acquisition Proposal fails to constitute a Superior Proposal (including the general basis for such failure)); and (y) that in the event of any material revision, amendment, update or supplement modifications to any Acquisition Proposal (it being understood that any change to the material financial terms of such Acquisition Proposalproposal shall be deemed a material modification (a “Material Revision”)), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirements of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period with respect to a Material Revision as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account ParentXxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents) reaffirmed its determination shall have determined that such the Acquisition Proposal is continues to be a Superior Proposal, and in the case of a Company Board Recommendation Change, that the failure to effect such Company Board Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe the Intervening Event shall specify in reasonable detail;detail the basis for such Company Board Recommendation Change; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three (3) Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Equity Commitment Letter so that the Company Board (or a such committee thereof) would no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant reasonably likely to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal and which did not result from a any material breach of this Section 5.3 5.3, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; or (B) cause the Company to terminate this Agreement pursuant to Section 8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) and (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; and
(2) (i) the Company has provided prior written notice to Parent at least three (3) Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(1), the “Notice Period”), which notice shall state (A) that the Company has received a bona fide Acquisition Proposal that has not been withdrawn and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative identity of the Person or Group making such Acquisition Agreement with respect Proposal, the material terms thereof and copies of all material relevant agreements relating to such Superior Proposal, in each case if Acquisition Proposal and only if:
(1C) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(c)(ii) absent any revision revisions to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal ; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Equity Commitment Letter so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(ii)(1) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(53) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, however, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event in reasonable detailEvent;
(2) prior to effecting such Company Board Recommendation Change, during such five (x5) Business Day period, the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change in response to such Intervening Event; and
(3) following such time period referred to in clause (2) above, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor advisors and outside legal counsel, and taking into account any modifications to this Agreement and the Financing Letters proposed by Parent) that the failure to make a Company Board Recommendation Change in response to take such Intervening Event action would be inconsistent with its fiduciary duties pursuant to under applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did was not the result from of a breach of this Section 5.3 5.3(a) that the Company Board has determined in good faith (after consultation with its financial advisors and that outside legal counsel) constitutes a Superior Proposal, then the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or and/or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an a definitive Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Superior Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) has received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CB) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of identify the Person or Group making such Acquisition Proposal, Superior Proposal and include the price material terms thereof and copies of all material relevant agreements relating to such Superior Proposal (it being understood that any revision or amendment to the financial or other material terms of such Acquisition Superior Proposal shall be deemed to constitute a new Superior Proposal and include copies of all relevant documents relating to shall require a new written notice and Notice Period); provided, however, that such Acquisition Proposal and new Notice Period shall be three (ii3) prior to effecting such Company Board Recommendation Change or terminationBusiness Days;
(4) during the Notice Period, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) has negotiated with Parent and its Representatives in good faith (to the extent that Parent desires has requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);and
(45) at following the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have determines in good faith (after consultation with its financial advisors and outside legal counsel, and taking into account Parent’s proposed revisions any modifications to the terms and conditions of this Agreement and any other information provided the Financing Letters proposed by Parent) reaffirmed its determination that such Acquisition Proposal is continues to be a Superior Proposal; and
(5) in Proposal and the event of any termination of this Agreement in order failure to cause or permit the Company or any of take such action would be inconsistent with its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)fiduciary duties under applicable Law.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Company Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) the Company Special Committee may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, effect, development or occurrence that (A) was not known to, or reasonably foreseeable by, the Company Board (or the Company Special Committee) as of the date hereof or, if known, the material consequences of which were not known or reasonably foreseeable as of the date hereof; and (B) does not involve or relate to the receipt, existence or terms of any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal) (each such event, an “Intervening Event Event”), if the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) the Company Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days Days’ (the “Event Notice Period”) in advance to the effect that the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) has (A) so determined and (B) resolved the Company Special Committee intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), ) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letters and/or the Guaranties so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make such a Company Board Recommendation Change in response to such Intervening Event would no longer reasonably be expected to be inconsistent with its the directors’ exercise of their fiduciary duties pursuant to under applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and taken into account any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement Agreement, the Equity Commitment Letters and/or the Guaranties proposed by Pxxxxx and any other information provided Merger Sub in response to the notice described in clause (1) of this Section 5.3(d)(i), in each case, that are offered in writing by ParentPxxxxx and Merger Sub, no later than 11:59 p.m. (Eastern Time) shall have determined that on the failure last day of the Company Board (or Event Notice Period, in a committee thereof) to make such manner that would constitute a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Lawbinding agreement between the parties if accepted by the Company; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and comply with the requirements of this Section 5.3(d)(i) and the time period set forth in the preceding clause (21) shall recommence and be extended for two three (3) Business Days from the day of such notification; and
(3) following such Event Notice Period, including any subsequent Event Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(i)(2), the Company Board (upon the recommendation of the Company Special Committee) or the Company Special Committee (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Mxxxxx Sub’s proposed revisions to the terms and conditions of this Agreement) shall have determined that the failure of the Company Board or the Company Special Committee to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law.
(ii) if the Company has received a bona fide written Acquisition Proposal that Proposal, which did not result result, directly or indirectly, from a breach of this Section 5.3 and 5.3, that the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) the Company Special Committee has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board (upon the recommendation of the Company Special Committee) or the Company Special Committee may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize and cause the Company to terminate this Agreement pursuant to Section 8.1(i7.1(d) and to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that neither the Company Board nor any committee thereof, including the Company Special Committee, shall take any action described in each case if and only ifthe foregoing clauses (x) or (y) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with Company, its financial advisor Subsidiaries and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) has the Company Special Committee (A) has received a written bona fide Acquisition Proposal that has not been withdrawn; (B) has concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, Proposal and the price and other material terms of such Acquisition Proposal and conditions thereof and include copies of all relevant documents relating to that set forth the material terms and conditions of such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letters and/or the Guaranties so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Equity Commitment Letter and/or the Guaranties proposed by Parent and other information provided by Parent Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentParent and Merger Sub, no later than 11:59 p.m. Central time (Eastern Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal, Proposal (which shall be deemed to include any change to the financial terms of such proposal) the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(d)(ii)(2), the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) must the Company Special Committee shall have concluded in good faith (after consultation with its financial advisor and outside legal counsel and taking into account ParentPxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(d).
Appears in 1 contract
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event or development or material change in circumstances that has materially improved or materially improves, or would be reasonably likely to materially improve the business, financial condition, assets and liabilities or results of operations of the Company Group, taken as a whole, in each case, that was (A) not known to, or reasonably foreseeable by, the Company Board as of December 4, 2019; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after December 4, 2019, or changes after December 4, 2019 in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account); (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Equity Commitment Letter, the failure Guaranty and/or the Debt Documents to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and its Representatives to make a presentation other information provided by Parent in response to the Company Board regarding notice described in clause (1) of this Agreement and any adjustments with respect thereto Section 5.3(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. (to Pacific Time) on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(i)(2) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time (Pacific Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its determination that such Acquisition Proposal is a Superior Proposalfiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance TimeCompany’s receipt of the Requisite Shareholder Approval:
(i) other than in connection with if the Company has received a bona fide written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Acquisition Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalAcquisition Proposal concurrently with the termination of this Agreement; provided, however, that the Company Board shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) following the Notice Period, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that, after taking into account any revisions to this Agreement made or proposed by Parent in writing, the failure to do so take such action would be inconsistent with reasonably expected to cause the Company Board to violate its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Superior Proposal that has not been withdrawn; and (B) concluded intends to take the actions described in good faith that such Acquisition Proposal constitutes a Superior Proposal; and clauses (CA) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this (B) of Section 5.3(d)(ii5.3(d)(i) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or terminationactions, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents relating to such Acquisition Proposal and Proposal; (ii) prior during the Notice Period (including as may be extended pursuant to effecting the last sentence of this Section 5.3(d)(i)(3)), the Company and its Representatives have kept Parent and its Representatives reasonably informed of the status of such Company Board Recommendation Change Acquisition Proposal and the material terms of any such Acquisition Proposal (including promptly, and in any event within twenty-four (24) hours, after receipt providing to Parent copies of any additional or termination, revised Acquisition Agreements); and (iii) the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in response to such Acquisition Proposal would cease be reasonably expected to constitute a Superior Proposalcause the Company Board to violate its fiduciary duties under applicable Law; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement substantive revisions to such Acquisition Proposal, the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(i)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposalnotice; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii);
(ii) other than in connection with a bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board may effect a Company Board Recommendation Change of the kind set forth in clause (A) or (D) of the definition thereof in response to an Intervening Event if the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably expected to cause the Company Board to violate its fiduciary duties under applicable Law; provided, however, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least three (3) Business Days in advance to the effect that the Company Board has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(ii), which notice will specify the applicable Intervening Event in reasonable detail; and
(2) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such three (3) Business Day period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be reasonably expected to cause the Company Board to violate its fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Merger Agreement (PRGX Global, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of the terms of this Section 5.3 and that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Acquisition Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, however, that the Company Board shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Superior Proposal that has not been withdrawn; and (B) concluded intends to take the actions described in good faith that such Acquisition Proposal constitutes a Superior Proposal; and clauses (CA) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this (B) of Section 5.3(d)(ii5.3(e)(i) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or terminationactions, including the identity of the Person or Group making such Acquisition Proposal, the price terms thereof (other than immaterial terms) and other material terms of such Acquisition Proposal and include copies of all relevant documents (other than immaterial documents) relating to such Acquisition Proposal including any proposed definitive transaction agreements with the Person making such Superior Proposal and; and (ii) prior to effecting taking such Company Board Recommendation Change actions described in clauses (A) or termination(B) of Section 5.3(e)(i), the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in response to such Acquisition Proposal would cease be inconsistent with its fiduciary duties pursuant to applicable Law (and would cause such Superior Proposal to no longer constitute a Superior Proposal; ), and must have kept Parent reasonably informed in all material respects of any material developments with respect to any such Acquisition Proposal (2and any subsequent amendments or modifications thereto) taken into account any adjustments and delivered copies of revised or newly received documents to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice PeriodParent, in each case, as soon as is reasonably practicable and in any event within twenty-four (24) hours of receipt, provision or occurrence thereof; provided, however, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(i)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii).
(ii) other than in connection with a bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board may effect a Company Board Recommendation Change of the kind set forth in clause (A), (D) or (E) of the definition thereof in response to an Intervening Event if the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, however, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four Business Days in advance to the effect that the Company Board has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(e)(ii), which notice will specify the applicable Intervening Event in reasonable detail; and
(2) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such three Business Day period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law, and must have kept Parent reasonably informed in all material respects of any material developments with respect to any such Intervening Event and delivered copies of revised or newly received documents relating to such Intervening Event to Parent, in each case, as soon as is reasonably practicable and in any event within twenty-four (24) hours of receipt, provision or occurrence thereof.
Appears in 1 contract
Samples: Merger Agreement (Otelco Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written an Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event or development or material change in circumstances after the date of this Agreement with respect to the Company that (A) was not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not relate to (1) any Acquisition Proposal; (2) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Class A Common Stock (it being understood that the underlying cause of any of the foregoing in this clause (2) may be considered and taken into account); (3) any change, action, event, condition, state of facts or effect relating to Parent, Merger Sub or any of their respective Affiliates; or (4) any development or change in the industry in which the Company and its Subsidiaries operate or conditions in the United States or other jurisdictions where the Company and its Subsidiaries operate (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would likely be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.2(d)(i), which notice will specify in reasonable detail the basis for such Company Board Recommendation Change and describe the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yi) the Company and its Representatives, until 11:59 during such four Business Day period (which period shall expire at 5:00 p.m. Central time at (Prevailing Pacific Time) on the last day of fourth Business Day (the “Event Notice Period”)), must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would likely be inconsistent with its fiduciary duties pursuant to applicable Law; , and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3ii) following such the Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have has determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would likely be inconsistent with its fiduciary duties pursuant to applicable Law; provided, it being understood that each time that material modifications or developments with respect to the Intervening Event occuroccur (as reasonably determined by the Company Board (or a committee thereof) in good faith), the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day later of (a) the delivery of such notification.written notice to Parent or (b) the end of the original Event Notice Period; or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would likely be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.3;5.2 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written an Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii8.1(h) absent any revision to the terms and conditions of this AgreementAgreement that would cause such Acquisition Proposal to cease to constitute a Superior Proposal, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until during the Notice Period (which period shall expire at 11:59 p.m. Central time (Prevailing Pacific Time) on the last day fourth Business Day of the Proposal Notice Period), must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires requests to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a1) in the event of any material revisionrevisions, amendmentamendments, update updates or supplement supplements to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.2(d)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business DaysDays from the later of (x) the delivery of such written notice to Parent and (y) the end of the original Notice Period);
, and (42) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account ParentXxxxxx’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) reaffirmed its determination described in clause (1) above that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).;
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Intervening Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
provided, however, that in the event of any material changes to the facts and circumstances relating to such Intervening Event, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(e)(i) (3other than the requirement of a presentation as contemplated by this clause (i)(2)) following with respect to such new written notice (it being understood that the “Intervening Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent ” in respect of such modification and the time period set forth in the preceding clause (2) shall recommence and new written notice will be extended for two Business Days from the day of such notification.Days); or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Rover Group, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents (including the most current version of the proposed agreement under which such Acquisition Proposal is proposed to be consummated) relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two three Business DaysDays from the date of such notice);
; and (4b) no Company Board Recommendation Change or termination will be permitted by the Company unless, at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have has in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisor and conditions of this Agreement and any other information provided by Parentoutside legal counsel) reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Table of Contents Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (MINDBODY, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(f)(i)(1), which notice will describe specify the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time 5:00 p.m., Eastern time, at the last day end of the Event Notice Periodsuch three (3) Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior ProposalProposal and which did not result from any breach of this Section 5.3, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its the directors’ fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four three (3) Business Days in advance (the “Proposal Notice Period”) to the effect which notice shall state that the Company Board (or a committee thereof) has (A) received a bona fide, written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement8.1(h), which notice will describe specify the basis reasons for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms and conditions of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time 5:00 p.m., Eastern time, on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute enable the Company Board to not make a Superior ProposalCompany Board Recommendation Change or terminate this Agreement in accordance with Section 8.1(h); and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board (or a committee thereof) regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(f)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two (2) Business Days);
; and (4b) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to consultation with its financial advisor and outside legal counsel) that the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such applicable Acquisition Proposal is still constitutes a Superior Proposal; and
. The parties agree that if the Notice Period (or any new five (5) in Business Day period) ends on a date that is concurrent with, or later than, the event date of any termination the Expiration Date, at its election Merger Sub may, or at the written request of this Agreement in order to cause or permit the Company Board, Merger Sub shall, extend the Offer until one (1) minute after 11:59 p.m. (New York City time) on the date that is the later of (x) two (2) Business Days following the last day of the applicable Notice Period (or any new five (5) Business Day period) or (y) the last day of the minimum period required by applicable Law, interpretation or position of the SEC or its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to staff or the NYSE or its staff for any such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)extension.
Appears in 1 contract
Samples: Merger Agreement (Globalscape Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Stockholder Approval:
(i) other than in connection with if the Company has received a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereofacting upon the recommendation of the Special Committee) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board (acting on the recommendation of the Special Committee) may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; Acquisition Proposal or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, however, that neither the Company Board nor the Special Committee shall take any action described in each case if the foregoing clauses (x) and only if(y) unless:
(1A) the Company Board (or a committee thereofacting upon the recommendation of the Special Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (iB) the Company has provided prior written notice to Parent and Merger Sub (a “Notice of Superior Proposal”) at least four three (3) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereofthe Special Committee) has (A) received a written Acquisition Superior Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved intends to effect a Company Board Recommendation Change or and/or authorize the Company to terminate this Agreement pursuant to this in accordance with Section 5.3(d)(ii) absent any revision to 7.1(f), which notice shall include a summary of the material terms and conditions of this Agreementsuch Acquisition Proposal and, which if applicable, a copy of the definitive proposed transaction agreement, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice will describe the basis for such shall not constitute a Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and Change;
(iiC) prior to effecting such Company Board Recommendation Change or terminationtaking any further action under this Section 5.3(d), the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated shall negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in response to such Acquisition Proposal would cease reasonably be expected to constitute a Superior Proposalbe inconsistent with its fiduciary duties pursuant to applicable Law; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition ProposalProposal (including any change in price) shall be deemed a new Superior Proposal to which the requirements of this Section 5.3(d) apply and, the Company will shall be required to deliver a new written notice Notice of Superior Proposal to Parent and Merger Sub and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(i)(B) with respect to such new written notice Notice of Superior Proposal (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);; and
(4D) at following the end of the Proposal Notice Period such three (including any subsequent Proposal Notice Period 3) Business Day period or two (2) Business Day period (as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)applicable), the Company Board (or a committee thereof) must shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that taking into account Parent’s any changes to this Agreement proposed revisions by Parent and Merger Sub in response to the terms and conditions Notice of this Agreement and any other information provided by Parent) reaffirmed its determination Superior Proposal or otherwise, that such Acquisition Proposal is giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal; and
(5E) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have first validly terminated this Agreement in accordance with Section 8.1(i7.1(f), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii7.3.
(ii) Other than in connection with an Acquisition Proposal (which shall be subject to Section 5.3(d)(i)), the Company Board may effect a Company Board Recommendation Change in connection with an Intervening Event if the Company Board (acting upon the recommendation of the Special Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, however, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(A) the Company has provided prior written notice to Parent and Merger Sub at least three (3) Business Days in advance that the Company Board intends to effect a Company Board Recommendation Change, which notice shall describe the applicable Intervening Event in reasonable detail, it being agreed that neither the delivery of such notice by the Company nor any public announcement that the Company Board (or any committee thereof) has delivered such notice shall, in itself, constitute a Company Board Recommendation Change; and
(B) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such three (3) Business Day period, shall have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board would no longer determine that the failure to make a Company Board Recommendation Change in connection with such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and then if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its the Company’s financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each such Acquisition Proposal did not result from a breach of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;; and
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Agreement and Plan of Merger
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Shareholder Approval:
(i) other than in connection with a written an Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change of the kind set forth in clause (A) or (D) of the definition thereof in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with likely cause the Company Board to violate its fiduciary duties pursuant to under applicable Law if and only ifLaws; provided that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)5.3(e)(i) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the applicable Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) would no longer determine that the failure to make a Company Board Recommendation Change in response to such Intervening Event would likely cause the Company Board to violate its fiduciary duties under applicable Laws; and
(3) following such five Business Day period, after taking into account any revisions to this Agreement made or proposed by Parent in writing, the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make effect a Company Board Recommendation Change of the kind set forth in clause (A) or (D) of the definition thereof in response to such Intervening Event would be inconsistent with likely cause the Company Board to violate its fiduciary duties pursuant to under applicable LawLaws; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded determined in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change of the type described in clauses (A) through (D) of the definition thereof with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to providing for the Acquisition Transaction contemplated by such Superior Acquisition Proposal, ; provided that the Company Board shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) following the Notice Period, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that, after taking into account any revisions to this Agreement made or proposed by Parent in writing, the failure to do so would be inconsistent with likely cause the Company Board to violate its fiduciary duties pursuant to under applicable LawLaws;
(2) the Company and each has not materially breached any of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal (and each other Acquisition Proposal made by such Person);
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (CB) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which ; (ii) such notice will describe has specified the basis for such Company Board Recommendation Change or terminationtermination of the Merger Agreement pursuant to this Section 5.3(e)(ii), including has included the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms and conditions of such Acquisition Proposal and include the nature of the information requested in connection with such Acquisition Proposal and has attached a copy of any Acquisition Proposal and copies of all relevant documents relating to such Acquisition Proposal; (iii) during the Notice Period (including as may be extended pursuant to the last sentence of this Section 5.3(e)(ii)(3)), the Company and its Representatives have kept Parent and its Representatives reasonably informed of (x) the status of such Acquisition Proposal, (y) the material terms (including modifications or revisions or proposed modifications or revisions to such material terms) of any such Acquisition Proposal (including promptly after receipt providing to Parent copies of any additional or revised Acquisition Agreements) and (iiz) the nature of any information requested of the Company with respect to such Acquisition Proposal or potential revised Acquisition Proposal; (iv) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any modification or revision (or proposed modification or revision) to the price, conditions or other material revision, amendment, update or supplement to terms of such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be the longer of two Business Days);
(4) at Days and the end number of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided Business Days remaining in the final proviso of the foregoing Section 5.3(d)(ii)(3current notice period)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to providing for the Acquisition Transaction contemplated by such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying (or causing to be paid) the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence with respect to the Company and its Subsidiaries, taken as a whole, that (A) was not known to, or reasonably foreseeable by, the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) as of the date hereof and becomes known by the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) prior to obtaining the Company Stockholder Approval (or, if known, the consequences of which were not known or reasonably foreseeable to the Company Board as of the date of this Agreement); and (B) does not involve or relate to (x) the receipt, existence or terms of any Acquisition Proposal (or any proposal or Inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal) or (y) changes in the market price or trading volume of the Shares or the fact that the Company meets or exceeds internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably likely be inconsistent with its fiduciary duties pursuant to under applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), 5.3(e)(i) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement so that to obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation taken into account any adjustments to the Company Board regarding terms and conditions of this Agreement proposed by Parxxx xxd Merger Sub and any adjustments with respect thereto (other information provided by Parxxx xxd Merger Sub in response to the extent notice described in clause (1) of this Section 5.3(e)(i), in each case, that Parent requests to make such are offered in writing by Parxxx xxd Merger Sub, no later than 11:59 p.m. (U.S. Central Time) on the last day of the Event Notice Period, in a presentation)manner that would constitute a binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Merger Sub’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably likely be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall automatically recommence and be extended for two three (3) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written an Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(d) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only if:
(1) however, that the Company Board (or a committee thereof) determines shall not take any action described in good faith the foregoing clauses (after consultation with its financial advisor and outside legal counselx) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;or (y) unless:
(21) the Company Company, its Subsidiaries and each of its and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written an Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent Parxxx xxd Merger Sub and other information provided by Parent and Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentParxxx xxd Merger Sub, no later than 11:59 p.m. (U.S. Central time Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal, Proposal (which shall be deemed to include any change to the financial terms of such proposal) the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be five (5) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(2), the Company Board (or a duly authorized committee thereofthereof acting with the full force and authority of the Company Board) must shall have concluded in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(d).
Appears in 1 contract
Samples: Merger Agreement (Patriot Transportation Holding, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior ProposalProposal and which did not result from any breach of this Section 5.3 by the Company Group or its Representatives, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawnwithdrawn and which terms and proposals have been previously provided to Parent pursuant to Section 5.3(f); (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Xactly Corp)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors (if any) and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detail;basis for such Company Board Recommendation Change; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such five Business Day period, have (A) negotiated has been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so in such a manner that would obviate the need to effect a Company Board Recommendation Change; or
(ii) if the Company has received an Acquisition Proposal that the Company Board (or a committee thereof) no longer determines has determined in good faith (after consultation with its financial advisor advisors (if any) and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) in order to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal; provided, that the Company Board (or a committee thereof) shall not take any action described in each case if the foregoing clauses (A) and only if(B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors (if any) and outside legal counsel) that the failure to do so would be is inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Subsidiaries and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(ii)(3), the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has intends to take the actions described in clauses (A) received a written Acquisition Proposal that has not been withdrawn; or (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this of Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination5.3(c)(ii), including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all material relevant documents agreements relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change or termination; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each caseprovided, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(ii)(3) with respect to such new written notice (with notice, it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i)8.1, including paying the Company Termination Fee in accordance with Section 8.3(b)(iii)8.3.
Appears in 1 contract
Samples: Merger Agreement (Kaleyra, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four five Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 5:00 p.m. Central time at the last day end of the Event Notice Periodsuch five Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with result in a breach of its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four five Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 5:00 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two four Business Days);
; and (4b) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms consultation with its financial advisor and conditions of this Agreement and any other information provided by Parentoutside legal counsel) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Forescout Technologies, Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change of the type described in clauses (A), (C) and (D) of the definition thereof in response to any material event, fact, circumstance, development or occurrence that was (A) not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal); or (b) the fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so to obviate the need to effect a Company Board Recommendation Change, in response to such Intervening Event and (B) taken into account any adjustments to the terms and conditions of this Agreement proposed by Parent and other information provided by Parent in response to the notice described in clause (1) of this Section 5.3(d)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Pacific time) on the last day of the Event Notice Period; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement) shall have determined in good faith that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided that each time material modifications to the Intervening Event occur, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(i)(3) with respect to such new written notice (it being understood that the “Event Notice Period” in respect of such new written notice will be three (3) Business Days).
(ii) if the Company has received a bona fide Acquisition Proposal, that the Company Board (or a committee thereof) no longer has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change of the type described in clauses (A), (C) and (D) of the definition thereof with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(g) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response do so would reasonably be expected to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and its Representatives have complied in all respects with their obligations pursuant to this Section 5.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (BC) permitted resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Acquisition Proposal, the material terms thereof and copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto in good faith (to the extent that Parent requests desires to make so negotiate) to offer such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a presentationSuperior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Pacific time) on the last day of the Proposal Notice Period, in a manner that would constitute a binding agreement between the parties if accepted by the Company; provided that in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification); and
, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (it being understood that the “Proposal Notice Period” in respect of such new written notice will be three (3) Business Days);
(4) following such Event Proposal Notice Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3), the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change or to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence with respect to the Company and its Subsidiaries, taken as a whole, that (A) was not known to, or reasonably foreseeable by, the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) as of the date hereof and becomes known by the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) prior to obtaining the Company Stockholder Approval (or, if known, the consequences of which were not known or reasonably foreseeable to the Company Board as of the date of this Agreement); and (B) does not involve or relate to (x) the receipt, existence or terms of any Acquisition Proposal (or any proposal or Inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal) or (y) changes in the market price or trading volume of the Shares or the fact that the Company meets or exceeds internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably likely be inconsistent with its fiduciary duties pursuant to under applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), 5.3(e)(i) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement so that to obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation taken into account any adjustments to the Company Board regarding terms and conditions of this Agreement proposed by Pxxxxx and any adjustments with respect thereto (Merger Sub and other information provided by Pxxxxx and Merger Sub in response to the extent notice described in clause (1) of this Section 5.3(e)(i), in each case, that Parent requests to make such are offered in writing by Pxxxxx and Merger Sub, no later than 11:59 p.m. (U.S. Central Time) on the last day of the Event Notice Period, in a presentation)manner that would constitute a binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Merger Sub’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably likely be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall automatically recommence and be extended for two three (3) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written an Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(d) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only if:
(1) however, that the Company Board (or a committee thereof) determines shall not take any action described in good faith the foregoing clauses (after consultation with its financial advisor and outside legal counselx) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;or (y) unless:
(21) the Company Company, its Subsidiaries and each of its and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written an Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent Pxxxxx and Merger Sub and other information provided by Parent and Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentPxxxxx and Merger Sub, no later than 11:59 p.m. (U.S. Central time Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal, Proposal (which shall be deemed to include any change to the financial terms of such proposal) the Company will shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be five (5) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(2), the Company Board (or a duly authorized committee thereofthereof acting with the full force and authority of the Company Board) must shall have concluded in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will shall have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(d).
Appears in 1 contract
Samples: Merger Agreement (Patriot Transportation Holding, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of December 11, 2020; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after December 11, 2020, or changes after December 11, 2020 in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to the Parent Entities at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with the Parent Entities and its their Representatives in good faith (to the extent that the Parent requests Entities desire to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and (B) permitted the Parent Entities and its their Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that the Parent Entities requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to the Parent Entities at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with the Parent Entities and its their Representatives in good faith (to the extent that the Parent desires Entities desire to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted the Parent Entities and their Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that the Parent and other information provided by Parent during the Proposal Notice PeriodEntities request to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to the Parent Entities and to comply with the requirements of this Section 5.3(d)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to (x) the Offer Acceptance Time:Consent End Date (in the event that the Stockholder Written Consent is delivered to the Company in accordance with Section 6.3(a) hereof) or (y) the Stockholder Approval Date (in the event the Stockholder Written Consent is not delivered to the Company in accordance with Section 6.3(a) and the Agreement is not terminated in accordance with Section 8.1(j):
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant written documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii)8.4.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date of this Agreement; or (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an "Intervening Event Event"), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal "Notice Period”") to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group "group" of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) (other than the requirement of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal "Notice Period” " in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Marketo, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably expected by, the Company Board as of the date of this Agreement; or (B) does not relate to (a) any Acquisition Proposal; or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date of this Agreement, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Law law if and only if:
(1) the Company has provided prior written notice to Parent at least four two Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such two Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group of “group” of Persons making such Acquisition ProposalProposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or “group” of Persons that is in effect on the date of this Agreement), the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Periodrequests to make such a presentation); provided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be one Business DaysDay);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereofacting on the recommendation of the Special Committee) may effect a Company Board Recommendation Change in response to an Intervening Event that occurs after the date hereof (within the meaning of clause (A) of the definition of “Company Board Recommendation Change”) if the Company Board (or a committee thereofacting on the recommendation of the Special Committee) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto, in accordance with this Section 5.3(c)(i), the “Intervening Event Notice Period”) in advance to the effect that the Company Board (or a committee thereofacting on the recommendation of the Special Committee) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the Intervening Event in reasonable detailbasis for such Company Board Recommendation Change;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Intervening Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodthat, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of the Intervening Event to which this provision applies thereafter changes in any material revision, amendment, update or supplement to such Acquisition Proposalrespect, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(c)(i) with respect to such new written notice (with notice, it being understood that the “Proposal Intervening Event Notice Period” in respect of such new written notice being two will be three Business Days);; and
(43) at the end of the Proposal Intervening Event Notice Period (including and prior to taking any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))such action, the Company Board (or a committee thereof) must have has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in good faith (after taking into account Parentconsultation with its financial advisors and outside legal counsel), that the failure to effect a Company Board Recommendation Change would continue to be inconsistent with the Company Board’s fiduciary duties under applicable Law if such changes proposed revisions by Parent were to be given effect; or
(ii) if the terms and conditions Company has received an unsolicited Acquisition Proposal that did not result from a non-de minimis breach of this Agreement Section 5.3 and any other information provided by Parentthat the Company Board (acting on the recommendation of the Special Committee) reaffirmed has determined in good faith (after consultation with its determination that such Acquisition Proposal is financial advisors and outside legal counsel) constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; and
or (5B) in cause the event of any termination of Company to terminate this Agreement pursuant to Section 8.1(h) in order to cause or permit the Company or any of its Subsidiaries to concurrently enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided that the Company Board shall not take any action described in the foregoing clauses (A) and (B) unless:
(1) the Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law;
(2) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto in accordance with this Section 5.3(c)(i)(2), the “Acquisition Proposal Notice Period”) to the effect that the Company Board intends to take the actions described in clauses (A) or (B) of Section 5.3(c)(ii), including the identity of the Person or Group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements (including any Alternative Acquisition Agreements) relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Acquisition Proposal Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination; provided that, in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms (including the form, amount and timing of payment of consideration) or other material terms of such proposal shall be deemed a material modification), the Company will have validly terminated be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(c)(i)(2) with respect to such new written notice, it being understood that the “Acquisition Proposal Notice Period” in respect of such new written notice will be three Business Days; and
(3) at the end of the Acquisition Proposal Notice Period and prior to taking any such action, the Company Board has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in accordance good faith (after consultation with Section 8.1(iits financial advisors and outside legal counsel), including paying that (x) such Acquisition Proposal continues to constitute a Superior Proposal and (y) the Termination Fee in accordance failure to take such action would continue to be inconsistent with Section 8.3(b)(iii)the Company Board’s fiduciary duties under applicable Law if such changes proposed by Parent were to be given effect.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an any Intervening Event Event, if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law if and only ifLaw; provided, that the Company Board shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, during such Event Notice Period, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (yA) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, Representatives must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Equity Commitment Letter, the failure Guaranty and/or the Debt Documents to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and shall have taken into account any adjustments with respect thereto (to the extent terms and conditions of this Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent in response to the notice described in clause (1) of this Section 5.3(e)(i), in each case, that are offered in writing by Parent requests to make such in a presentation)manner that would constitute a binding agreement between the parties if accepted by the Company, by no later than 11:59 p.m., Pacific Time, on the last day of the Event Notice Period; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) Event Notice Period shall recommence and be extended for two (2) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clause (A) or (B) unless:
(1) with respect to the actions described in the foregoing clauses (A) and (B), the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four two (2) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including include the identity of the Person or Group “group” of Persons making such Acquisition ProposalProposal (unless such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Persons that is in effect on the Agreement Date), the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1I) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2II) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Agreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by ParentParent in a manner that would constitute a binding agreement between the parties if accepted by the Company, by no later than 11:59 p.m. Central time p.m., Pacific Time, on the last day of the Proposal Notice Period; provided, it being understood (x) that neither the Company, any of its Affiliates or any of their respective Representatives may disclose to any Person or “group” of Persons making an Acquisition Proposal the specific price per share of any offer of Parent pursuant to this Section 5.3(e)(ii)(3) unless and until a definitive agreement with respect to such offer is executed by the Company (aprovided, however, that, for the avoidance of doubt, this clause (x) shall not prevent or limit in any respect the Company, its Affiliates or their respective Representatives from notifying any such Person or “group” of Persons that its Acquisition Proposal fails to constitute a Superior Proposal (including the general basis for such failure)); and (y) that in the event of any material revision, amendment, update or supplement modifications to any Acquisition Proposal (it being understood that any change to the material financial terms of such Acquisition Proposalproposal shall be deemed a material modification (a “Material Revision”)), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) (other than the requirements of a presentation as contemplated by clause (ii)(3) above) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period with respect to a Material Revision as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Equity Commitment Letter, the Guaranty and/or the Debt Documents) reaffirmed its determination shall have determined that such the Acquisition Proposal is continues to be a Superior Proposal, and in the case of a Company Board Recommendation Change, that the failure to effect such Company Board Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (STAMPS.COM Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Acquisition Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments permitted Parent and its Representatives to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days5.3(d)(ii);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Acceptance Time:
(i) other than in connection with a written an Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event or development or material change in circumstances with respect to the Company that was (A) not actually known to, or reasonably foreseeable or expected by, the Company Board as of the date hereof and which becomes known to the Company Board after the date of hereof; and (B) does not relate to (I) any Acquisition Proposal; (II) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (II) may be considered and taken into account if not otherwise excluded from consideration pursuant to the other prongs of this definition), (III) Parent or its Affiliates, (IV) any change in composition of the Company Board or (V) any matter set forth in Section 6.2(e) of the Company Disclosure Letter (each such event, an “Intervening Event if Event”), if:
(A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law if and only if:law;
(1B) the Company has provided prior written notice to Parent at least four (4) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i6.2(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2C) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 during such four (4) Business Day period (which period shall expire at 5:00 p.m. Central time at (Prevailing Eastern Time) on the last day of the Event Notice Periodfourth (4th) Business Day), must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable law; provided, that any change in an applicable Intervening Event shall require the Company and Parent to provide a new written notice to Parent pursuant to Section 6.2(e)(i)(B) and begin a new negotiation period of three (3) Business Days; and
(D) at the end of such four (4) or three (3) Business Day period (as applicable), the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make effect a Company Board Recommendation Change in response continues to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (law after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions any adjustments to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) Parent has agreed to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications prior to the Intervening Event occur, the Company shall notify Parent end of such modification and the time four (4) or three (3) Business Day period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.as applicable); or
(ii) if the Company has received a an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(g) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2B) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.36.2 with respect to such Acquisition Proposal;
(3C) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (Aa) received a written an Acquisition Proposal that has not been withdrawn; (Bb) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (Cc) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii8.1(g) absent any revision to the terms and conditions of this AgreementAgreement that would cause such Acquisition Proposal to cease to constitute a Superior Proposal, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant written and non-binding or binding letters of intent, indications of interest, term sheets, indicative terms or similar documents or proposed definitive agreements relating to such Acquisition Proposal Proposal, as applicable; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 during the Notice Period (which period shall expire at 5:00 p.m. Central time (Prevailing Eastern Time) on the last day Business Day of the Proposal Notice Period), must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires requests to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any amendment to the financial terms of, or any other material revisionrevisions to, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(36.2(e)(ii)(C) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three (3) Business Days);
(4D) at the end of the Proposal applicable Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal continues to constitute a Superior Proposal and that the failure to effect a Company Board Recommendation Change or terminate this Agreement pursuant to Section 8.1(g) would be or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable law after taking into account Parent’s proposed revisions any adjustments to the terms and conditions that Parent has agreed to make prior to the end of this Agreement and any other information provided by Parent) reaffirmed its determination the Notice Period in a definitive written offer that such Acquisition Proposal is a Superior Proposalstill capable of acceptance; and
(5E) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(g), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii)8.3(b)(ii) prior to or concurrently with the termination of this Agreement.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any positive material event, development or material change in circumstances with respect to the Company that (x) was not actually known to, or reasonably foreseeable or expected by, the Company Board as of the date hereof or if actually known, or reasonably foreseeable or expected, the consequences of which were not known, or reasonably foreseeable or expected, as of the date hereof; and (y) does not relate to (1) any Acquisition Proposal; or (2) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (2) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties obligations pursuant to applicable Law and if and only if:
(1A) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Intervening Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A1) so determined determined; and (B2) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;detail as known by the Company; and
(2B) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its RepresentativesCompany, until 11:59 p.m. Central time at the last day of the during such Intervening Event Notice Period, must have, and must have (A) used its commercially reasonable efforts to cause its appropriate Representatives to have, negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) regarding any proposal by Parent in good faith to make such adjustments to adjust the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant or would reasonably be expected to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties obligations pursuant to applicable Law; provided, however, that each time in the event of any material modifications changes to the facts and circumstances relating to such Intervening Event occurEvent, the Company shall notify will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(i) with respect to such new written notice (it being understood that the “Intervening Event Notice Period” in respect of such modification and the time period set forth in the preceding clause (2) shall recommence and new written notice will be extended for two Business Days from the day of such notification.Days); or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, that the Company Board (or a committee thereof) has concluded determines in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1A) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties obligations pursuant to applicable Law;
(2B) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3C) (i1) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Superior Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (Aa) received a written an Acquisition Proposal that has not been withdrawn; (Bb) concluded determined in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (Cc) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this AgreementAgreement that would cause such Acquisition Proposal to cease to be a Superior Proposal, which notice will describe the basis for such Company Board Recommendation Change or termination, including include the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii2) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Superior Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments regarding any proposal by Parent in good faith to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii) with respect to such new written notice (with it being understood that the “Superior Proposal Notice Period” in respect of such new written notice being will be two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5D) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii8.3(b).
Appears in 1 contract
Samples: Merger Agreement (Augmedix, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Shareholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change of the type described in clauses (A), (C) or (D) of the definition thereof, solely in response to any material event, fact, circumstance, development or occurrence that was (A) not known to, or reasonably foreseeable by, the Company Board as of the Agreement Date but becomes known to the Company Board after the Agreement Date and (B) does not relate to (a) any Acquisition Proposal (or any Inquiry, offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal); (b) the fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the Agreement Date, or changes after the Agreement Date in the market price or trading volume of the Company Ordinary Shares or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account); (c) any fact regarding Parent or its Affiliates or (d) any change in the composition of the Company Board (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four (4) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Guarantee, the failure Debt Commitment Letter and/or the Equity Commitment Letter to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Guarantee, the Debt Commitment Letter and/or the Equity Commitment Letter proposed in good faith by Parent and its Representatives to make a presentation other information provided by Parent in response to the Company Board regarding notice described in clause (1) of this Agreement and any adjustments with respect thereto (to Section 5.3(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. Eastern Time on the extent last day of the Event Notice Period in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement, the Guarantee, the Debt Commitment Letter and/or the Equity Commitment Letter) shall have determined in good faith that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(e)(i)(3) with respect to such new written notice (it being understood that the “Event Notice Period” in respect of such modification and the time period set forth in the preceding clause new written notice will be two (2) shall recommence and be extended for two Business Days from the day of such notificationDays).
(ii) if the Company has received a bona fide written Acquisition Proposal Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that did has not result from a breach of this Section 5.3 been withdrawn and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four three (3) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant and material documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Guarantee, the Debt Commitment Letter and/or the Equity Commitment Letter so that such Acquisition Proposal would cease to constitute a Superior Proposal; Proposal and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Guarantee, the Debt Commitment Letter and/or the Equity Commitment Letter proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time Eastern Time on the last day of the Proposal Notice PeriodPeriod in a manner that would constitute a binding agreement between the parties if accepted by the Company; provided, it being understood however, that (a) in the event of any material revision, amendment, update or supplement modifications to such Acquisition ProposalProposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(e)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);
(4) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(e)(ii)(3), the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement Agreement, the Guarantee, the Debt Commitment Letter and/or the Equity Commitment Letter and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change or to terminate this Agreement would reasonably be expected to be inconsistent with its determination that such Acquisition Proposal is a Superior Proposalfiduciary duties pursuant to applicable Law; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Tufin Software Technologies Ltd.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeCompany Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence that (A) was not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not involve or relate to the receipt, existence or terms of any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four three (3) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), ) which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent requests and Merger Sub desire to so negotiate) to make allow Parent and Merger Sub to offer such adjustments to the terms and conditions of this Agreement so that Agreement, the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that Commitment Letters and/or the failure Guaranty to make obviate the need to effect a Company Board Recommendation Change Change, in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable LawEvent; and (B) permitted taken into account any adjustments to the terms and conditions of this Agreement, the Commitment Letters and/or the Guaranty proposed by Parent and its Representatives to make a presentation Merger Sub and other information provided by Parent and Merger Sub in response to the Company Board regarding notice described in clause (1) of this Agreement Section 5.3(e)(i), in each case, that are offered in writing by Parent and any adjustments with respect thereto Merger Sub, no later than 11:59 p.m. (to Central Time) on the extent last day of the Event Notice Period, in a manner that Parent requests to make such would constitute a presentation)binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s and Merger Sub’s proposed revisions to the terms and conditions of this Agreement and any other information provided by ParentAgreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two three (3) Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (Ax) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (By) authorize the Company to terminate this Agreement pursuant to Section 8.1(i7.1(d) to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, in each case if and only if:
(1) however, that the Company Board (or a committee thereof) determines shall not take any action described in good faith the foregoing clauses (after consultation with its financial advisor and outside legal counselx) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;or (y) unless:
(21) the Company Company, its Subsidiaries and each of its and their respective Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(32) (i) the Company has provided prior written notice to Parent at least four three (3) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including specify the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include conditions thereof and copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of during the Proposal Notice Period, must have (1x) negotiated with Parent Parent, Merger Sub and its their Representatives in good faith (to the extent that Parent desires and Merger Sub desire to so negotiate) to make offer such adjustments to the terms and conditions of this Agreement Agreement, the Commitment Letters and/or the Guaranty so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2y) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents Agreement, the Commitment Letters and/or the Guaranty proposed by Parent and Merger Sub and other information provided by Parent and Merger Sub during the Proposal Notice Period, in each case, that are offered in writing by ParentParent and Merger Sub, no later than 11:59 p.m. (Central time Time) on the last day of the Proposal Notice Period, it being understood in a manner that (a) would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material revision, amendment, update or supplement modifications to such Acquisition Proposal, Proposal (which shall be deemed to include any change to the financial terms of such proposal) the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(2) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being will be two (2) Business Days);
(43) at the end of the following such Proposal Notice Period (Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)5.3(d)(ii)(2), the Company Board (or a committee thereof) must shall have concluded in good faith (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is continues to constitute a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii7.1(d).
Appears in 1 contract
Samples: Merger Agreement (Tenneco Inc)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to any material event, fact, circumstance, development or occurrence that was (A) not known to, or reasonably foreseeable by, the Company Board as of the date hereof; and (B) does not relate to (a) any Acquisition Proposal (or any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal); or (b) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (b) may be considered and taken into account); (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law and if and only if:
(1) the Company has provided prior written notice to Parent at least four (4) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.4(e)(i), which notice will describe specify the basis for such Company Board Recommendation Change, including a description of the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the during such Event Notice Period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so Agreement, the Financing Letters and/or the Guaranty to obviate the need to effect a Company Board Recommendation Change, in response to such Intervening Event; and (B) taken into account any adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty proposed by Parent and other information provided by Parent in response to the notice described in clause (1) of this Section 5.4(e)(i), in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Central time) on the last day of the Event Notice Period, in a manner that would constitute a binding agreement between the parties if accepted by the Company; and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two (2) Business Days from the day of such notification.
(ii) if the Company has received a bona fide Acquisition Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) no longer has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response do so would reasonably be expected to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company Group and its Representatives have complied in all material respects with their obligations pursuant to this Section 5.4 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (BC) permitted resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to Section 5.4(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Acquisition Proposal, the material terms thereof and copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto in good faith (to the extent that Parent requests desires to make so negotiate) to offer such adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty so that such Acquisition Proposal would cease to constitute a presentationSuperior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Central time) on the last day of the Proposal Notice Period, in a manner that would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification); and, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(e)(ii)(3) with respect to such new written notice (it being understood that the “Proposal Notice Period” in respect of such new written notice will be two (2) Business Days);
(34) following such Event Proposal Notice Period, including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.4(e)(ii)(3), the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change or to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (RealPage, Inc.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Shareholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided, however, that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless:
(1) the Company has provided prior written notice to Parent at least four five (5) Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved intends to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i)Change, which notice will describe shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event in reasonable detailEvent;
(2) prior to effecting such Company Board Recommendation Change, during such five (x5) Business Day period, the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that would obviate the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure need to make effect a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; Event, and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Periodfive (5) Business Day period, the Company Board (or a committee thereof) (after consultation with its financial advisor advisors and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Financing Letters) shall have determined that the failure of the Company Board to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties under applicable Law; and
(3) following such five (5) Business Day period, the Company Board (or a committee thereof) (after consultation with its financial advisors and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Financing Letters and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its fiduciary duties pursuant to under applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and provided that such time period shall instead be extended for two three (3) Business Days from the day of such notification.; or
(ii) if the Company has received a written bona fide written Acquisition Proposal during the Go-Shop Period or an unsolicited written bona fide Acquisition Proposal after the expiration of the Go-Shop Period, that did not result from the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a breach of this Section 5.3 and that Superior Proposal, then the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or and/or (B) authorize cause the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h); and/or (C) cause the Company to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalProposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in each case if and only ifthe foregoing clauses (A), (B) or (C) unless:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;5.3 with respect to such Superior Proposal; and
(3) (i) the Company has provided prior written notice to Parent at least four five (5) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) has received a written an Acquisition Proposal that has not been withdrawn; (B) has concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) has resolved to effect a Company Board Recommendation Change or and to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of identify the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Superior Proposal and include the material terms thereof and copies of all relevant documents agreements relating to such Acquisition Proposal Superior Proposal; and (ii) prior to effecting such Company Board Recommendation Change or terminationduring the Notice Period, the Company and its Representatives, until 11:59 p.m. Central time on the last day of the Proposal Notice Period, have (1) has negotiated with Parent and its Representatives in good faith (to the extent that Parent desires has requested to negotiatedo so) to make allow Parent to offer such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days);and
(4) at the end of the Proposal following such Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))Period, the Company Board (or a committee thereof) must have in good faith (after consultation with its financial advisors and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Financing Letters and any other information provided by Parent) reaffirmed shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change to terminate this Agreement would be inconsistent with its determination fiduciary duties under applicable Law; provided, that such each time material modifications to the terms of an Acquisition Proposal is determined to be a Superior Proposal; and
Proposal are made (5) in it being understood that any change to the event financial terms of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposalproposal shall be deemed a material modification), the Company will have validly terminated this Agreement shall notify Parent of such modification and the time period set forth in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii)preceding clause (3) shall recommence provided that such time period shall instead be three (3) Business Days from the day of such notification.
Appears in 1 contract
Samples: Merger Agreement (Cision Ltd.)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Stockholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law and then if and only if:
(1) the Company has provided prior written notice to Parent at least four three Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such three Business Day period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; Law and (B) permitted provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;; and
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four three Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms and conditions of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; , and (2) taken into account any adjustments provided Parent and its Representatives with an opportunity to make a presentation to the terms and conditions of Company Board regarding this Agreement and related Transaction Documents proposed by any adjustments with respect thereto (to the extent that Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Periodrequests to make such a presentation), it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(ii)(2) with respect to such new written notice (with the “Proposal Notice Period” in respect of such new written notice being two Business Days, provided that such new notice shall in no event shorten the original three Business Day notice period);
; and (4b) the Company Board, at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)after consultation with its financial advisor and outside legal counsel), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal; and
(5) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i), including paying the Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior until the earlier to occur of the Offer Acceptance Timetermination of this Agreement pursuant to Article VIII and the Company’s receipt of the Company Stockholder Approval:
(i) other than in connection with a written Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereofacting under the direction of the Special Committee) may effect a Company Board Recommendation Change (within the meaning of clause (A) of the definition of “Company Board Recommendation Change”) in response to an Intervening Event if the Company Board (or a committee thereofacting under the direction of the Special Committee) determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to under applicable Law if and only ifLaw; provided that the Company Board (acting under the direction of the Special Committee) shall not effect such a Company Board Recommendation Change unless:
(1) (A) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) has (A) so determined and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will describe the Intervening Event in reasonable detail;
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
three (3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law;
(2) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (such notice period, including any extension thereto, in accordance with this Section 5.3(d)(i)(1), the “Proposal Intervening Event Notice Period”) to the effect that the Company Board (or a committee thereofacting under the direction of the Special Committee) has (A) received a written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved intends to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent any revision to the terms and conditions of this AgreementChange, which notice will describe shall specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal Change; and (iiB) prior to effecting such Company Board Recommendation Change or terminationChange, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Intervening Event Notice Period, have (1) negotiated been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement so and the Financing Letters in such a manner that such Acquisition Proposal would cease obviate the need to constitute effect a Superior ProposalCompany Board Recommendation Change; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodthat, in each case, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of the Intervening Event to which this provision applies thereafter changes in any material revision, amendment, update or supplement to such Acquisition Proposalrespect, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(35.3(d)(i)(1) with respect to such new written notice (with notice, it being understood that the “Proposal Intervening Event Notice Period” in respect of such new written notice being will be two (2) Business Days);; and
(42) at the end of the Proposal Intervening Event Notice Period (including and prior to taking any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3))such action, the Company Board (or a committee thereofacting under the direction of the Special Committee) must have has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in good faith (after taking into account Parentconsultation with its financial advisors and outside legal counsel), that the failure to effect a Company Board Recommendation Change would continue to be inconsistent with the Company Board’s fiduciary duties under applicable Law if such changes proposed revisions by Parent were to be given effect; or
(ii) if the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Company has received an unsolicited Acquisition Proposal is and that the Company Board (acting under the direction of the Special Committee) has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal, then the Company Board (acting under the direction of the Special Committee) may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; and
or (5B) cause the Company to terminate this Agreement pursuant to Section 8.1(h) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided that the Company Board (acting under the direction of the Special Committee) shall not take any action described in the foregoing clauses (A) and (B) unless:
(1) the Company Board (acting under the direction of the Special Committee) determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law;
(2) (A) the Company has provided prior written notice to Parent at least three (3) Business Days in advance (such notice period, including any extension thereto, in accordance with this Section 5.3(d)(ii)(2), the “Acquisition Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) intends to take the actions described in clauses (A) or (B) of Section 5.3(d)(ii), which notice shall specify the identity of the Person or Group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements relating to such Acquisition Proposal; and (B) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Acquisition Proposal Notice Period, have been available to negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination; provided that, in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will have validly terminated be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(2) with respect to such new written notice, it being understood that the “Acquisition Proposal Notice Period” in respect of such new written notice will be two (2) Business Days; and
(3) at the end of the Acquisition Proposal Notice Period and prior to taking any such action, the Company Board has considered in good faith any such proposals by Parent to make revisions to the terms of this Agreement and the Financing Letters, and has determined in accordance good faith (after consultation with Section 8.1(iits financial advisors and outside legal counsel), including paying that (A) such Acquisition Proposal continues to constitute a Superior Proposal and (B) the Termination Fee in accordance failure to take such action would continue to be reasonably likely to be inconsistent with Section 8.3(b)(iii)the Company Board’s fiduciary duties under applicable Law if such changes proposed by Parent were to be given effect.
Appears in 1 contract
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Offer Acceptance TimeRequisite Shareholder Approval:
(i) other than in connection with a written bona fide Acquisition Proposal that constitutes a Superior ProposalProposal pursuant to clause (ii) below, the Company Board (or a committee thereof) ), may effect a Company Board Recommendation Change in response to any positive material event or development or material change in circumstances with respect to the Company that (A) was not actually known to the Company Board as of the date hereof (or, if known, the natural consequences of which were not reasonably foreseeable by the Company Board as of the date of this Agreement); and (B) does not relate to (1) any Acquisition Proposal; or (2) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (2) may be considered and taken into account) (each such event, an “Intervening Event Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law law and if and only if:
(1) the Company has provided prior written notice to Parent at least four Business Days (the “Event Notice Period”) in advance to the effect that the Company Board (or a committee thereof) ), has (A) so determined determined; and (B) resolved to effect a Company Board Recommendation Change pursuant to this Section 5.3(d)(i5.3(e)(i), which notice will describe specify the applicable Intervening Event in reasonable detail;; and
(2) prior to effecting such Company Board Recommendation Change, (x) the Company and each of its Representatives has complied in all material respects with its obligations pursuant to this Section 5.3 and (y) the Company and its Representatives, until 11:59 p.m. Central time at the last day of the Event Notice Periodduring such four Business Day period, must have (A) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board (or a committee thereof) no longer determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); and
(3) following such Event Notice Period, the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) shall have determined that the failure of the Company Board (or a committee thereof) to make such a Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, that each time material modifications to the Intervening Event occur, the Company shall notify Parent of such modification and the time period set forth in the preceding clause (2) shall recommence and be extended for two Business Days from the day of such notification.or
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Acquisition Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(i) to enter into an Alternative Acquisition Agreement with respect to such Superior Acquisition Proposal, in each case if and only if:
(1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Lawlaw;
(2) the Company Group and each of its Representatives has have complied in all material respects with its their obligations pursuant to this Section 5.35.3 with respect to such Acquisition Proposal;
(3) (i) the Company has provided prior written notice to Parent at least four Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) ), has (A) received a written bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii5.3(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will describe specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or Group “group” of Persons making such Acquisition Proposal, the price and other material terms of such Acquisition Proposal thereof and include copies of all relevant documents relating to such Acquisition Proposal Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, until 11:59 p.m. Central time on during the last day of the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement and related Transaction Documents proposed by Parent and other information provided by Parent during the Proposal Notice Periodprovided, in each casehowever, that are offered in writing by Parent, no later than 11:59 p.m. Central time on the last day of the Proposal Notice Period, it being understood that (a) in the event of any material revision, amendment, update or supplement revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(3) with respect to such new written notice (with it being understood that the “Proposal Notice Period” in respect of such new written notice being two will be three Business Days);
(4) at the end of the Proposal Notice Period (including any subsequent Proposal Notice Period as provided in the final proviso of the foregoing Section 5.3(d)(ii)(3)), the Company Board (or a committee thereof) must have in good faith (after taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and any other information provided by Parent) reaffirmed its determination that such Acquisition Proposal is a Superior Proposal; and
(54) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries Group to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(i8.1(h), including paying the Company Termination Fee in accordance with Section 8.3(b)(iii).
Appears in 1 contract
Samples: Merger Agreement (Chico's Fas, Inc.)
