Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”). (b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports. (c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 5 contracts
Samples: Merger Agreement (3PAR Inc.), Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)7.7, the Company Board shall recommend that the holders of Company Shares Company’s stockholders accept the Offer, tender their Company Shares to Acquisition Sub pursuant to Offer and adopt the Offer and, if required by “agreement of merger” (as such term is used in Section 251 of the DGCL) set forth in this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
(b) at the Company Stockholder Meeting. Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood thatrecommend, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take approve, endorse or recommend any such Acquisition Proposal or agreement pursuant to which an Acquisition Transaction would be consummated (any of the actions (each such foregoing action or failure referred to act in the preceding clauses (ix) through and (ivy) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change if it is accompanied by a statement of the Company Board expressly and publicly reaffirming the Company Board Recommendation in connection with such statement or disclosure.
(b) Notwithstanding the foregoing or anything to the contrary set forth in terms of this Agreement, ifSection 7.7, at any time prior to the Appointment Purchase Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided (and disclose to the Company Stockholders that the Company Board has effected a Company Board Recommendation Change) if the conditions set forth below have been satisfied prior to effecting such Company Board Recommendation Change:
(i) the Company Board determines shall have received an Acquisition Proposal (which has not been withdrawn) in good faith (writing after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; date hereof;
(ii) the Company has notified Board shall have given Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail prompt written notice (A) of the reasons, including identity of the Person(s) making such Acquisition Proposal and all of the material terms and conditions of any such Superior Acquisition Proposal (and if such Acquisition Proposal is in written form, a copy of such Acquisition Proposal and all related agreements, commitment letters and other material documents provided or otherwise furnished by the final form of any related agreements or a description Person(s) making such Acquisition Proposal in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”connection therewith) (it being understood agreed that in the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes event that there is any material revision to the terms of this Agreement); (iii) if requested by Parentan Acquisition Proposal, including any revision in price, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to promptly notify Parent of any such Recommendation Change Noticematerial revision); and and
(iviii) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with its financial advisor and its outside legal counsel), after considering the terms ) that (A) such Acquisition Proposal constitutes a Superior Proposal and (B) in light of such proposal by ParentSuperior Proposal, that the failure to make a Company Board Recommendation Change is still necessary in light reasonably likely to be a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company’s stockholders under Delaware Law;
(c) Notwithstanding the foregoing terms of this Section 7.7, at any time prior to Purchase Time, the Company Board may effect a Company Board Recommendation Change (and disclose to the Company Stockholders under applicable Delaware Law. Any material amendment or modification that the Company Board has effected a Company Board Recommendation Change) for a reason unrelated to an Acquisition Proposal (it being understood and agreed that any Superior Company Board Recommendation Change proposed to be made in relation to an Acquisition Proposal will may only be deemed made pursuant to and in accordance with the terms of Section 7.7(b))if the conditions set forth below have been satisfied prior to effecting such Company Board Recommendation Change:
(i) the Company Board shall have determined in good faith (after consultation with its outside legal counsel) that the failure to make a Company Board recommendation Change is reasonably likely to be a new Superior Proposal for purposes breach of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and its fiduciary duties to the extent required Company’s stockholders under Delaware Law; and
(ii) the Company Board shall have given Parent prompt notice upon determining that it intends to be disclosed in any effect such Company SEC ReportsBoard Recommendation Change.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Company’s stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event (i) any such statement or other disclosure shall be subject to the terms and conditions of this Section 6.3(cAgreement, including the provisions of Article IX, and (ii) affect the obligations any such statement or disclosure (other than a “stop, look and listen communication” of the Company set forth in Sections 6.2 type contemplated by Rule 14d-9(f) under the Exchange Act, and 6.3; and provided, further, that any such disclosure will within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless it is accompanied by a statement of the Company Board of Directors expressly and publicly reaffirms reaffirming the Company Board Recommendation within five Business Days of in connection with such statement or disclosure.
Appears in 3 contracts
Samples: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp)
Company Board Recommendation. (a) Subject to During the terms of Section 6.3(b) and Section 6.3(c)Pre-Closing Period, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shareswithdraw, (ii) withhold, withdraw, amend or modify qualify or modify, in each case, in a manner adverse to ParentParent or Merger Subs, or publicly propose to withdraw, withhold, withdraw, amend or modify qualify or modify, in each case, in a manner adverse to ParentParent or Merger Subs, the Company Board Recommendation, (iiiB) adoptfail to include the Company Board Recommendation in the Proxy Statement, approve, recommend, endorse or otherwise declare advisable (C) fail to publicly reaffirm the adoption of any Acquisition Proposal Company Board Recommendation within ten (10) Business Days after Parent so requests in writing (it being understood thatthat the Parent shall only be entitled to make up to two (2) such reaffirmation requests), only with respect (D) approve, recommend or declare advisable, or publicly propose to a approve, recommend or declare advisable, any Acquisition Proposal or (E) if any tender offer or exchange offeroffer is commenced for equity securities of the Company, taking a neutral position fail to recommend against such tender offer or no position exchange offer by the earlier of (1) the tenth (10th) Business Day after the commencement of such tender offer or exchange offer and (2) the third (3rd) Business Day prior to the Company Stockholders Meeting other than in a “stop, look and listen” communication made in compliance with pursuant to Rule 14d-9(f) promulgated under the Exchange Act) with respect to Act (any Acquisition Proposal shall be considered a breach of action described in this clause (iii)i) being referred to as a “Company Adverse Change Recommendation”), or (ivii) resolveapprove, agree recommend or publicly declare advisable, or propose to take approve, recommend or declare advisable, or allow the Company to execute or enter into any such actions Company Acquisition Agreement (each such foregoing action or failure to act in clauses other than an Acceptable Confidentiality Agreement).
(ib) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in Section 5.2 (a) or elsewhere in this Agreement, if, at any time prior to the Appointment Time, receipt of the Company Board Required Vote:
(i) in the event that (x) the Company or any of its Representatives receives a Superior written Acquisition Proposal or there occurs an Intervening Event(which Acquisition Proposal did not result from a breach of Section 4.4, the Company Board may effect other than a Company Board Recommendation Change provided breach that is immaterial and unintentional) from any Person that has not been withdrawn and (iy) the Company Board (or a committee thereof) determines in good faith (faith, after consultation with its financial advisors and outside legal counsel) , that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of such Acquisition Proposal is a Superior Proposal, the Company Board approves (or recommends a committee thereof) may (A) make a Company Adverse Change Recommendation, or (B) authorize the Company to terminate this Agreement in accordance with Section 9.1 and enter into a Company Acquisition Agreement with respect to such Superior Proposal; , in the case of each of clauses (iiA) and (B), if and only if: (1) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements (or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”committee thereof) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (faith, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1 at least five (5) Business Days prior to making any such Company Adverse Change Recommendation or effecting such termination (a “Determination Notice”) (which notice shall not (in and of itself) constitute a Company Adverse Change Recommendation); and (3) (I) the Company shall have provided to Parent unredacted copies of the most current drafts of any proposed Company Acquisition Agreement with respect to an Acquisition Proposal and any financing commitments or other agreements to be entered into in connection with such Acquisition Proposal and a summary of the material terms and conditions of the Acquisition Proposal in accordance with Section 4.4, (II) the Company shall have afforded Parent five (5) Business Days (the “Match Period”) after delivery of the Determination Notice and the documents contemplated by the foregoing clause (I) to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Proposal, and shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (III) after considering the terms of this Agreement, and any revisions thereto proposed to be made by Parent, if any, prior to 11:59 p.m. Eastern Time on the last day of the Match Period, the Company Board (or a committee thereof) shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that the failure to make such disclosure the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1 would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company Board under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in Sections 6.2 this Section 5.2, so long as such communication solely describes the Company’s receipt of an Acquisition Proposal and 6.3; the operation of this Agreement with respect thereto and providedneither the Company Board nor any committee thereof takes any action set forth in Section 5.2(a). The provisions of Section 5.2(b)(i)(B)(II) and Section 5.2(b)(i)(B)(III) shall also apply to any amendment to any economic terms or any material non-economic terms of any Acquisition Proposal and require a new Determination Notice, further, except that any such disclosure will the Match Period shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms two (2) Business Days; and
(ii) other than in connection with an Acquisition Proposal, the Company Board (or a committee thereof) may make a Company Adverse Change Recommendation within in response to a Change in Circumstances, if and only if: (A) the Company Board (or a committee thereof) determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least five (5) Business Days prior to making any such Company Adverse Change Recommendation (which notice describes the Change in Circumstance in reasonable detail); and (C) (1) the Company shall have afforded Parent five (5) Business Days after the delivery of the Determination Notice to propose revisions to the terms of this Agreement and shall have negotiated, to the extent Parent desires to negotiate, in good faith with Parent with respect to such disclosureproposed revisions, so that such Change in Circumstances would no longer necessitate a Company Adverse Change Recommendation, and (2) after considering the terms of this Agreement, and the effect of proposed revisions made by Parent, if any, prior to 11:59 p.m. Eastern Time on the fourth (4th) Business Day following delivery of the Determination Notice, the Company Board (or a committee thereof) shall have determined, in good faith after consultation with its outside legal counsel, that the failure to make the Company Adverse Change Recommendation in response to such Change in Circumstances would still be inconsistent with the fiduciary duties of the Company Board under applicable Legal Requirements. For the avoidance of doubt, the provisions of Section 5.2(b)(ii)(B) and Section 5.2(b)(ii)(C) shall also apply to any material change to the facts and circumstances relating to such Change in Circumstance and require a new Determination Notice, except that references to five (5)Business Days shall be deemed to be two (2) Business Days.
(iii) Notwithstanding anything in the Confidentiality Agreement to the contrary, nothing therein shall prohibit or limit the ability of Parent or any of its Affiliates or Representatives to make any proposals to, or undertake any negotiations with, the Company as contemplated by this Section 5.2.
Appears in 3 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.3, the Company Board shall recommend that the holders of Company Shares Stockholders accept the Offer, Offer and tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Subject to Section 6.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal or (iii) adoptfail to include the Company Board Recommendation in the Schedule 14D-9 (each of clauses (i), approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, (i) the Company Board receives may, in response to the receipt of a Superior written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 6.2 or there occurs the occurrence an Intervening Event, the Company Board may effect a Company Board Recommendation Change and (ii) the Company Board may, in response to the receipt of a written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 6.2, cause or permit the Company or any of the Company’s Subsidiaries to enter into a definitive agreement with respect to such Acquisition Proposal and terminate this Agreement pursuant to Section 9.1(c)(ii); provided that the Company and Company Board may only take an action described in clause (i) or clause (ii) of this Section 6.3(c) if (A) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company provides written notice to Parent at least four (4) Business Days prior to effecting a Company Board Recommendation Change would reasonably be expected or terminating this Agreement pursuant to be a breach Section 9.1(c)(ii) of its fiduciary duties intent to take such action, specifying the Company Stockholders under applicable Delaware Lawreasons therefor, and including, in the case of a Superior receipt of an Acquisition Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Acquisition Proposal and (including a copy of the final form all definitive agreements in respect thereof and any other relevant proposed transaction documentation (including any financing commitments)) (a “Change of any related agreements or a description in reasonable detail of such Intervening EventRecommendation/Termination Notice”), as the case may be, for (D) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 9.1(c)(ii), the Company negotiates, and causes its Representatives to negotiate, with Parent in good faith (to the extent Parent seeks to negotiate) during such four (4) Business Day period to enable Parent to propose in writing a “Recommendation Change Notice”) (it being understood that binding offer to amend the Recommendation Change Notice shall not constitute terms and conditions of this Agreement and the CVR Agreement as to obviate the basis for a Company Board Recommendation Change for purposes or the termination of this Agreement); Agreement pursuant to Section 9.1(c)(ii) and (iiiE) if requested by Parentno earlier than the end of such four (4) Business Day period, the Company shall have made its Representatives available to discuss and negotiate Board determines in good faith (after consultation with Parent’s Representatives its financial advisor(s) and outside legal counsel), after considering any proposed modifications amendments to the terms and conditions of this Agreement and the CVR Agreement proposed in writing in a binding offer by Parent during the three such four (34) Business Day period following period, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (and, in the case of an Acquisition Proposal, that such Acquisition Proposal constitutes a Superior Proposal). Following delivery by of a Change of Recommendation/Termination Notice in the Company to Parent case of such Recommendation Change Notice; and (iv) if Parent shall have delivered an Acquisition Proposal, in the event of any change to the Company a written proposal capable financial terms (including any change to the amount or form of being accepted by the Company consideration payable) or other material revision to alter the terms or conditions of this Agreement during such three (3) Business Day periodAcquisition Proposal, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms provide a new Change of such proposal by Recommendation/Termination Notice to Parent, that a and any Company Board Recommendation Change is still necessary in light or termination of this Agreement pursuant to Section 9.1(c)(ii) following delivery of such Superior Proposal or Intervening Event in order new Change of Recommendation/Termination Notice shall again be subject to comply with its fiduciary duties clauses (C) through (E) of the immediately preceding sentence, except that references to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will four (4) Business Days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and Act or (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c6.3(d) affect the obligations of shall not permit the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed Board to be make a Company Board Recommendation Change unless except to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureextent permitted by Section 6.3(c).
Appears in 3 contracts
Samples: Merger Agreement (Johnson & Johnson), Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.2(b), the Company Board shall recommend that (i) make the holders of Company Shares accept Board Recommendation and (ii) include the Company Board Recommendation (with respect to the Offer, tender their ) in the Schedule 14D-9 and permit Parent to include the Company Shares to Acquisition Sub pursuant to Board Recommendation in the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”)Documents.
(b) Neither Subject to the permitted actions contemplated by this Section 7.2 or Section 9.1(d)(ii), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, (ii) withhold, withhold or withdraw, amend or amend, qualify or modify in a manner adverse to Parent, or publicly propose to refuse to so make, withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parentmodify, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of recommend an Acquisition Proposal, or fail to publicly recommend against any such Acquisition Proposal (it being understood that, only with respect to that is a tender offer or exchange offeroffer for Company Shares within 10 Business Days after commencement of such offer (and at all times thereafter during which any such tender offer or exchange offer is pending) and reaffirm the Company Board Recommendation within such 10 Business Day-period (and at all times thereafter during which any such tender offer or exchange offer is pending), taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))) fail to include the Company Board Recommendation in the Schedule 14D-9 or the Proxy Statement, as applicable, (iv) fail to reaffirm the Company Board Recommendation within 3 Business Days of a written request to do so by Parent, or (ivv) resolve, agree or publicly propose to take any such of the foregoing actions (each such foregoing any action or failure to act described in clauses (i) through (iv) being referred to herein as an v), a “Company Board Recommendation Change”). .
(c) Notwithstanding the foregoing anything in Section 7.1 or anything Section 7.2 to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Eventcontrary, the Company Board may effect a Company Board Recommendation Change provided that Change, or may terminate this Agreement pursuant to Section 9.1(d)(ii) to enter into a definitive agreement with respect to a Superior Proposal, at any time prior to the Acceptance Time, if (i) the Company Board has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal, (ii) neither the Company nor any of its Subsidiaries has breached the provisions of Section 7.1 or this Section 7.2 with respect to such Acquisition Proposal, (iii) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 9.2(d)(ii), the Company Board shall have given Parent at least 3 Business Days prior written notice thereof, which notice shall attach such Superior Proposal and set forth the identity of the Person making such Superior Proposal and all the material terms and conditions of such Superior Proposal in reasonable detail (it being understood and agreed that any revision or modification in any material respect to such Superior Proposal shall require a new written notice by the Company to Parent in compliance with this clause (iii) and a new matching period under clause (iv) below, except that such notices and matching period shall be 2 Business Days), and the opportunity to meet with the Company Board and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement proposed by Parent so that the transactions contemplated hereby may be effected and (iv) Parent shall not have made, within 3 Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change or terminate this Agreement pursuant to Section 9.2(d)(ii), a definitive written counter-offer or proposal that the Company Board determines in good faith (after consultation with its independent financial advisor and its outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties is at least as favorable to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends as such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any such counter-offers or proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cd) Notwithstanding anything in Section 7.1 or Section 7.2 to the contrary, the Company Board may effect a Company Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event, if (i) the Company Board has determined in good faith (after consultation with outside legal counsel), that, in light of such Intervening Event, the Company Board is required to effect a Company Board Recommendation Change in order to comply with the Company Board’s fiduciary duties to the Company Stockholders under Delaware Law, and (ii) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least 3 Business Days prior written notice thereof, which notice shall describe the Intervening Event in reasonable detail, and the opportunity to meet with the Company Board and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith any modification of the terms and conditions of this Agreement that may be proposed by Parent so that the Company Board may determine not to effect such Company Board Recommendation Change.
(e) Nothing in this Agreement shall prohibit the Company Board from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to the Company Stockholders its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders), provided that any such disclosure (other than a “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or complying with Act) following the provisions commencement (within the meaning of Rule 14d-9 14d-2 promulgated under the Exchange Act, and (ii) making any disclosure to of a tender offer that constitutes an Acquisition Proposal by a third party that does not recommend that the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make reject such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedAcquisition Proposal, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Company Board of Directors otherwise expressly publicly reaffirms the Company Board Recommendation within five 3 Business Days following a written request by Parent, or (ii) making any “stop-look-and-listen” communication or similar communication of such disclosurethe type contemplated by Rule 14d-9(f) under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Transcend Services Inc)
Company Board Recommendation. (a) The Company shall obtain the Requisite Stockholder Approval in accordance with Section 4.8. Subject to the terms of this Section 6.3(b) and Section 6.3(c)4.7, the Company Board shall recommend that adoption of this Agreement and the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required transactions contemplated hereby by the applicable provisions of Delaware LawStockholders (such recommendation, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw withhold or rescind (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentBuyer or Merger Sub), or publicly propose to withhold, withdraw, amend withhold or rescind (or modify or qualify in a manner adverse to ParentBuyer or Merger Sub), the Company Board Recommendation, (iiiii) adopt, approveendorse, approve or recommend, endorse or otherwise declare advisable propose publicly to adopt, endorse, approve or recommend, or submit to the adoption vote of any securityholders of the Company, any Acquisition Proposal, or approve any transaction under, or any transaction resulting in any third party becoming an “interested stockholder” under, Section 203 of the DGCL, (iii) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Stockholders, (iv) fail to recommend against any Acquisition Proposal (it being understood that, only with respect to that is a tender offer or exchange offeroffer within 10 Business Days after the commencement thereof or prior to the date of the Company Stockholder Meeting, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fv) promulgated under resolve or agree to take any of the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach foregoing actions (each of this clause clauses (i), (ii), (iii)), or (iv) resolve, agree or publicly propose to take any such actions and (each such foregoing action or failure to act in clauses (iv) through (iv) being referred to herein as an a “Company Board Recommendation Change”). The parties acknowledge that a “stop, look and listen” communication by the Company Board or any committee thereof to the Stockholders pursuant to Rule 14d-9(f) of the Securities Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change; provided, that any such communication that has the substantive effect of withdrawing, modifying or qualifying in any adverse manner the Company Board Recommendation shall be deemed for all purposes of this Agreement to be a Company Board Recommendation Change unless the Company Board expressly publicly reaffirms the Company Board Recommendation in such communication without any qualification.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Stockholder Approval, the Company Board may (i) effect a Company Board Recommendation Change in response to a Superior Proposal or (ii) terminate this Agreement pursuant to Section 7.1(f) in response to a Superior Proposal; provided that (iA) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect a Company Board Recommendation Change take such action would be reasonably be expected likely to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and (B) in the case of a Superior Proposal, the Company Board approves or recommends such determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that the applicable Acquisition Proposal constitutes a Superior Proposal; , (iiC) the Company has notified Parent in writing that it intends provides written notice to effect Buyer at least five (5) Business Days prior to effecting a Company Board Recommendation Change or terminating this Agreement pursuant to Section 7.1(f) of its intent to take such action, specifying the reasons therefor (a “Notice of Intended Recommendation Change”), describing and in reasonable detail the reasonscase of any Notice of Intended Recommendation Change provided in connection with a Superior Proposal, including such Notice of Intended Recommendation Change specifies the material terms and conditions of any the related Superior Proposal, identifying the Person or group making such Superior Proposal and including, in addition to the information provided pursuant to Section 4.6(b), a copy of the final form most current version of any the agreement or proposal and all material related agreements or a description in reasonable detail of documentation with respect to such Intervening EventSuperior Proposal, as the case may be, for (D) prior to effecting such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of or terminating this AgreementAgreement pursuant to Section 7.1(f); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives available to discuss and representatives to, negotiate with Buyer in good faith with Parent’s Representatives any proposed modifications (to the extent Buyer desires to negotiate) during such five (5) Business Day period to make such adjustments in the terms and conditions of this Agreement during as would obviate the basis for a Company Board Recommendation Change or the termination of this Agreement pursuant to Section 7.1(f) and (E) taking into account any changes to the terms of this Agreement proposed by Buyer in any binding proposal, the Company Board or any committee thereof has determined in good faith (1) after consultation with the Company’s outside counsel, with respect to the actions described in this Section 4.7(c), that it would continue to be inconsistent with the Company’s directors’ fiduciary duties under applicable Law not to effect the Company Board Recommendation Change and (2) after consultation with the Company’s outside legal counsel and financial advisor, with respect to the actions described in this Section 4.7(c), that the Acquisition Proposal received by the Company continues to constitute a Superior Proposal, in each case, if such changes offered by Buyer in such binding proposal were given effect; provided, further, that any purported termination of this Agreement pursuant to this Section 4.7(c) shall be void and of no force and effect unless such termination is in accordance with Section 7.1(f) and the Company pays to Buyer the Termination Fee in accordance with Section 7.2 prior to or concurrently with such termination. Following delivery of a Notice of Intended Recommendation Change in response to a Superior Proposal, in the event of any material change to the financial terms (including any change to the amount or form of consideration payable) or other material revision to the terms or conditions of such Superior Proposal, the Company shall provide a new Notice of Intended Recommendation Change to Buyer, and any Company Board Recommendation Change or termination of this Agreement pursuant to Section 7.1(f) following delivery of such new Notice of Intended Recommendation Change shall again be subject to clauses (D) and (E) of the immediately preceding sentence for a period of three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsDays.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Securityholders a position contemplated by Rule 14e-2(a) under the Securities Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Securities Exchange ActAct in each case after commencement of a tender offer, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably be expected likely to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, howeverin the case of each of clauses (i) and (ii), that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change may be made unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureshall have first complied with its obligations under Section 4.7(c).
Appears in 3 contracts
Samples: Merger Agreement (Majesco), Merger Agreement (Majesco), Merger Agreement (InsPro Technologies Corp)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.1, the Company Board shall recommend that the holders of Company Shares Stockholders accept the Offer, Offer and tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”)) and the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents.
(b) Neither Except as otherwise expressly provided in this Agreement, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or rescind (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Merger Sub), or publicly propose to withhold, withdraw, amend withdraw or rescind (or modify or qualify in a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation, (ii) approve, recommend or declare advisable or publicly propose to approve, recommend or declare advisable an Acquisition Proposal or (iii) adoptfail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company Stockholders (each of clauses (i), (ii) and (iii) a “Company Board Recommendation Change”) or (iv) approve, recommend, endorse recommend or otherwise declare advisable or propose to approve, recommend or declare advisable or allow the adoption of Company to execute or enter into any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) Contract with respect to any Acquisition Proposal shall be considered or requiring the Company to abandon, terminate, delay or fail to consummate the transactions contemplated by this Agreement (other than an Acceptable Confidentiality Agreement); provided, however, that a breach “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of this clause (iii))the Exchange Act, or (iv) resolveany substantially similar communication, agree or publicly propose shall not be deemed to take be a Company Board Recommendation Change so long as any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “disclosure does not include a Company Board Recommendation Change”). .
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may (i) effect a Company Board Recommendation Change in each case in response to a Superior Proposal or an Intervening Event; provided that (iA) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and (B) in the case of a Superior Proposal, the Company Board approves or recommends such determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that the applicable Acquisition Proposal constitutes a Superior Proposal; , (iiC) the Company has notified provides written notice to Parent in writing that it intends at least four (4) Business Days prior to effect effecting a Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(f) of its intent to take such action, specifying the reasons therefor (a “Notice of Intended Recommendation Change”), describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for (D) prior to effecting such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of or terminating this AgreementAgreement pursuant to Section 8.1(f); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives available to discuss and to, negotiate with Parent in good faith with Parent’s Representatives any proposed modifications (to the extent Parent desires to negotiate) during such four (4) Business Day period to make such adjustments in the terms and conditions of this Agreement during as would obviate the three (3) Business Day period following delivery by the basis for a Company to Parent of such Board Recommendation Change Notice; and (iv) if Parent shall have delivered or the termination of this Agreement pursuant to Section 8.1(f). Following delivery of a Notice of Intended Recommendation Change in the event of any material change to the Company a written proposal capable financial terms (including any change to the amount or form of being accepted by the Company consideration payable) or other material revision to alter the terms or conditions of this Agreement during such three (3) Business Day periodan applicable Acquisition Proposal or material change in the Effect constituting an Intervening Event, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms provide a new Notice of such proposal by Intended Recommendation Change to Parent, that a and any Company Board Recommendation Change is still necessary in light or termination of this Agreement pursuant to Section 8.1(f) following delivery of such Superior Proposal or Intervening Event in order new Notice of Intended Recommendation Change shall again be subject to comply with its fiduciary duties to clause (D) of the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be immediately preceding sentence for a new Superior Proposal for purposes period of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will or position described in clauses (i) and (ii), shall be deemed to be a Company Board Recommendation Change unless the Company’s Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of in such disclosuredisclosure or in connection with such action.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Horizon Pharma PLC), Merger Agreement (Raptor Pharmaceutical Corp)
Company Board Recommendation. (a) Subject to Other than in accordance with the terms of this Section 6.3(b) and Section 6.3(c)6.2, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to not make the a Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend Change or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any enter into an Alternative Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”)Agreement. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to obtaining the Appointment TimeRequisite Shareholder Approval, the Company Board receives may, in response to its receipt of a Superior Proposal or there occurs an Intervening Eventthat has not been withdrawn, the Company Board may (i) effect a Company Board Recommendation Change provided that with respect to such Superior Proposal or (iii) terminate this Agreement pursuant to Section 8.1(g) in order to enter into a definitive Alternative Acquisition Agreement providing for such Superior Proposal if, in each case (A) the Company Board determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (D) below), that the in light of such Superior Proposal, failure to effect a Company Board Recommendation Change or failure to terminate this Agreement in order to enter into a definitive Alternative Acquisition Agreement providing for such Superior Proposal would reasonably be expected inconsistent with the fiduciary duties of the Company Board under Applicable Law; (B) prior to be a breach effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least four (4) Business Days’ prior written notice (the “Superior Proposal Notice Period”) of its fiduciary duties intention to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to Section 8.1(g) (which notice shall include the most current version of the proposed definitive agreement with respect to such Superior Proposal and, to the extent not included therein, a reasonably detailed summary of all material terms and conditions of such Superior Proposal, including any financing arrangements to the extent provided to the Company Stockholders under applicable Delaware Lawor any of its Subsidiaries or their Representatives and the identity of the Person making such Superior Proposal, if not appearing elsewhere in the documents provided to Parent); (C) the Company shall, and shall cause its financial and legal advisors to, during the Superior Proposal Notice Period, negotiate with Parent (to the extent Parent desires to negotiate) in good faith any proposed modifications to the case terms and conditions of this Agreement in response to such Superior Proposal; and (D) after taking into account any counter-offer or proposal offered by Parent within the Superior Proposal Notice Period in writing, if any, the Company Board again makes the determination that the Acquisition Proposal that is subject to the notice set forth above still constitutes a Superior Proposal (it being understood that (1) any material amendment or modification to the terms of a Superior Proposal, including any revision in price, shall be deemed a new Acquisition Proposal for purposes of this Section 6.2, and (2) the Company shall promptly (but in any event within 24 hours of the occurrence) notify Parent of any such amendment or modification and provide the required information regarding such new Acquisition Proposal (to the extent not previously provided) in compliance with the terms of this Section 6.2 anew; provided that the period during which the Company and its Representatives are required to negotiate with Parent in good faith regarding any modified terms proposed by Parent in response to such new Acquisition Proposal shall expire on the later to occur of two (2) Business Days after the Company provides written notice of such new Acquisition Proposal and the end of the original Superior Proposal Notice Period).
(b) Notwithstanding anything in this Agreement to the contrary, other than in connection with a Company Superior Proposal (which shall be subject to Section 6.2(a) and shall not be subject to this Section 6.2(b)), prior to obtaining the Requisite Shareholder Approval (and in no event after receipt of the Requisite Shareholder Approval), the Company Board approves or recommends may, in response to a Company Intervening Event, make a Company Board Recommendation Change (pursuant to Section (i) of the definition of Company Board Recommendation Change), if (i) the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such Superior Proposal; action would be inconsistent with its fiduciary duties under Applicable Law, (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes pursuant to this Section 6.2(b) (which notice shall specify the facts and circumstances providing the basis of this Agreementthe Company Intervening Event in reasonable detail); , (iii) if requested by Parentfor a period of four (4) Business Days following the notice delivered pursuant to clause (ii) of this Section 6.2(b), the Company and the Company’s Representatives shall have made its Representatives available to discuss discussed and negotiate negotiated in good faith (to the extent Parent desires to negotiate) with Parent and Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; Agreement, and (iv) if Parent shall have delivered to no earlier than the Company a written proposal capable end of being accepted by the Company to alter the terms or conditions of this Agreement during such three four (34) Business Day period, the Company Board shall have determined in good faith (faith, after consultation with outside legal counsel), and after considering taking into account any proposal by Parent to amend or modify the terms of such proposal this Agreement offered by ParentParent in writing, that a Company Board Recommendation Change is the failure to take such action would still necessary in light of such Superior Proposal or Intervening Event in order to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Applicable Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company or Company Board from (i) taking and disclosing to the Company Stockholders Shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and ; (ii) making any disclosure taking and disclosing to the Company Stockholders that Shareholders a position contemplated by Section 329 of the ICL; (iii) making a “stop, look and listen” communication to Company Shareholders pursuant to Rule 14d-9(f) under the Exchange Act; or (iv) making any other disclosure to Company Shareholders if the Company Board determines has determined in good faith (after consultation with its the Company’s outside legal counsel) counsel that the failure to make such disclosure do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the Company Stockholders Board under applicable Delaware Applicable Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations taking of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such position or making of any such disclosure will be deemed to be contemplated by this Section 6.2(c) shall not affect the definition of “Company Board Recommendation Change” and the Company Board may not effect a Company Board Recommendation Change unless except in compliance with this Section 6.2.
(d) Prior to the Board termination of Directors publicly reaffirms this Agreement pursuant to Article VIII, the Company Board Recommendation within five Business Days shall not take any action to approve any transaction under, or exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the provisions of, any Takeover Law or any anti-takeover provision in the Charter Documents of the Company or otherwise cause such disclosurerestrictions not to apply. To the extent permitted under any Takeover Law, the Company shall promptly take all steps necessary to terminate any waiver or other exemption that may have been previously granted to any such Person or any Acquisition Proposal under any such provision.
Appears in 3 contracts
Samples: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Gilat Satellite Networks LTD)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)7.7, the Company Board shall recommend that the holders of Company Shares Company’s stockholders accept the Offer, tender their Company Shares to Acquisition Sub pursuant to Offer and adopt the Offer and, if required by “agreement of merger” (as such term is used in Section 251 of the DGCL) set forth in this Agreement in accordance with the applicable provisions of Delaware Lawthe DGCL at the Company Stockholder Meeting (together, adopt this Agreement (the “Company Board Recommendation”).
(b) . Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parentmodify, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood thatrecommend, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take approve, endorse or recommend, any such Acquisition Proposal or agreement pursuant to which an Acquisition Transaction would be consummated (any of the actions (each such foregoing action or failure referred to act in the preceding clauses (ix) through and (ivy) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board to the Company’s stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change if it is accompanied by a statement of the Company Board expressly and publicly reaffirming the Company Board Recommendation issued or made in connection with such communication.
(b) Notwithstanding the foregoing or anything terms of Section 7.7(a) but subject to the contrary set forth in this Agreement, ifSection 7.7(e), at any time prior to the Appointment Purchase Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided (and disclose to the Company’s stockholders that the Company Board has effected a Company Board Recommendation Change) if the conditions set forth below have been satisfied prior to effecting such Company Board Recommendation Change:
(i) the Company Board determines shall have received an Acquisition Proposal (which has not been withdrawn) in good faith writing after the date hereof;
(after consultation ii) none of the Company, any of its Subsidiaries or any of their respective Representatives shall have breached or violated in any material respect the terms of Section 7.6 in connection with outside legal counselsuch Acquisition Proposal or in connection with any other Acquisition Proposal made by any Person (or any Affiliate or agent thereof) that making such Acquisition Proposal;
(iii) the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Lawshall have given Parent prompt, and in all cases within forty-eight (48) hours of its receipt, written notice of the case identity of a Superior Proposal, the Company Board approves or recommends Person(s) making such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including Acquisition Proposal and all of the material terms and conditions of any such Superior Acquisition Proposal (and if such Acquisition Proposal is in written form, a copy of such Acquisition Proposal and all related agreements, commitment letters and other material documents provided or otherwise furnished by the final form of any related agreements or a description Person(s) making such Acquisition Proposal in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”connection therewith) (it being understood agreed that in the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes event that there is any material revision to the terms of this Agreement); (iii) if requested by Parentan Acquisition Proposal, including any revision in price, the Company shall have made its Representatives available to discuss promptly, and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three event within one (31) Business Day period following delivery by the Company to Day, notify Parent of any such Recommendation Change Noticematerial revision and provide copies of any material written documents provided by such Person(s), if in written form); and and
(iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with its financial advisor and its outside legal counsel), after considering the terms ) that (A) such Acquisition Proposal constitutes a Superior Proposal and (B) in light of such proposal by ParentAcquisition Proposal, that the failure to make a Company Board Recommendation Change is still necessary in light reasonably likely to be a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders Company’s stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Notwithstanding the foregoing terms of Section 7.7(a) but subject to Section 7.7(e), at any time prior to Purchase Time, the Company Board may effect a Company Board Recommendation Change (and disclose to the Company’s stockholders that the Company Board has effected a Company Board Recommendation Change) for a reason unrelated to an Acquisition Proposal (it being agreed that any Company Board Recommendation Change proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with the terms of Section 7.7(b)) if events, facts, developments, circumstances or occurrences that affect the business, assets or operations of the Company or its Subsidiaries that were not known by the Company as of the date hereof become known and as a result thereof the Company Board determines in good faith (after consultation with its financial advisor and its outside legal counsel) that the failure to make a Company Board Recommendation Change is reasonably likely to be a breach of its fiduciary duties to the Company’s stockholders under Delaware Law.
(d) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Company’s stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act; provided, however, that (i) any such statement or other disclosure shall be subject to the terms and conditions of this Agreement, including the provisions of Article IX, and (ii) making any such statement or disclosure (other than a “stop, look and listen communication” of the type contemplated by Rule 14d-9(f) under the Exchange Act, and within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless it is accompanied by a statement of the Company Stockholders Board expressly and publicly reaffirming the Company Board Recommendation issued or made in connection with such communication.
(e) Notwithstanding the foregoing terms of Section 7.7(b) or Section 7.7(c), no Company Board Recommendation Change may be made unless:
(i) the Company Board shall have first provided three (3) Business Days prior written notice to Parent that it is prepared to effect a Company Board Recommendation Change pursuant to Section 7.7(b) or Section 7.7(c), which notice shall specify the basis for such Company Board Recommendation Change;
(ii) prior to making such Company Board Recommendation Change, the Company and its Representatives, during such three (3) Business Day period, shall have (A) given Parent and its Representatives the opportunity to meet with the Company’s financial advisors and outside legal counsel at such times as Parent may reasonably request for the purpose of enabling Parent and the Company to discuss in good faith this Agreement and the terms and conditions hereof, and any modifications of the terms and conditions of this Agreement that Parent may propose in response thereto so that the Company Board determines in good faith (after consultation with its outside legal counsel) shall no longer determine that the failure to make such disclosure would a Company Board Recommendation Change is reasonably be expected likely to be a breach of its fiduciary duties to the Company’s stockholders under Delaware Law and (B) permitted Parent and its Representatives to make one presentation to the Company Stockholders under applicable Delaware LawBoard (which may be by conference call or other remote communication) regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation); provided, however, that in no the event shall this Section 6.3(c) affect of any change to the obligations material terms of the Company set forth in Sections 6.2 and 6.3; and provided, further, such Acquisition Proposal (it being understood that any such disclosure will change in price or type of consideration shall be deemed to be a change of a material term) or such events, facts, developments, circumstances or occurrences, the Company Board shall deliver to Parent written notice thereof and shall comply with this Section 7.7(e) with respect to such new notice, except that if the only change is a change in price, then the notice period shall be two (2) Business Days (rather than the three (3) Business Days otherwise contemplated by this Section 7.7(e)); and
(iii) after the foregoing three (3) Business Day period and any extensions and, if requested by Parent, meetings with Parent and its financial advisors and legal counsel during such period, the Company Board shall have again determined in good faith (after consultation with its financial advisor and its outside legal counsel), and after good faith consideration of all proposals by Parent, the failure to make such Company Board Recommendation Change unless is reasonably likely to be a breach of its fiduciary duties to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureCompany’s stockholders under Delaware Law.
Appears in 2 contracts
Samples: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Ramtron International Corp)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.2(b), the Company Board shall (i) recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by and adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “Company Board Recommendation”)) and (ii) include the Company Board Recommendation (with respect to the Offer) in the Schedule 14D-9 and permit Parent to include the Company Board Recommendation in the Offer Documents.
(b) Neither Subject to the terms of this Section 7.2(b), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Eventforegoing, the Company Board may effect a Company Board Recommendation Change provided that at any time prior to the Appointment Time, if and only if (i) the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal, (ii) neither the Company nor any of its Subsidiaries shall have breached or violated (or be deemed, pursuant to the terms hereof, to have breached or violated) the provisions of Section 7.1 in connection with such Superior Offer, (iii) the Company Board reasonably determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (v) that below), that, in light of such Superior Proposal, the failure Company Board is required to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or , (iv) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days notice thereof and the opportunity to meet with the Company Board and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of the terms and conditions of this Section 6.3. The Agreement so that the transactions contemplated hereby may be effected and (v) Parent shall not have made, within five (5) Business Days after receipt of the Company’s written notice of its intention to effect a Company shall keep confidential any proposals made by Parent Board Recommendation Change, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsStockholders as such Superior Proposal.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and or (ii) subject to compliance with the terms of Section 7.2(b) hereof if the disclosure relates to a Superior Proposal, making any disclosure disclosures to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure Company Board is required to make such disclosure would reasonably be expected in order to be a breach of comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that that, in no event shall this Section 6.3(ceach case, any statement(s) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms made by the Company Board Recommendation within five Business Days pursuant to the foregoing shall be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article IX.
Appears in 2 contracts
Samples: Merger Agreement (Polycom Inc), Merger Agreement (Spectralink Corp)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifSection 7.5(d), at any time prior to the Appointment Acceptance Time, if the Company has received a bona fide written Acquisition Proposal following the date of this Agreement from any Person that is not withdrawn and that the Company Board receives determines in good faith constitutes a Superior Proposal or there occurs an Intervening EventProposal, the Company Board may effect a Company Board Adverse Recommendation Change provided that and cause the Company to terminate this Agreement and enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) the Company Board determines in good faith (faith, after consultation with an independent financial advisor and outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would be reasonably be expected likely to be result in a breach of its fiduciary duties to the Company Stockholders obligations under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; Laws;
(ii) the Company has notified Parent shall have complied in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the all material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of respects with its obligations under this Agreement); Section 7.5;
(iii) if requested by Parent, the Company shall have made its Representatives available provided prior written notice (a “Determination Notice”) to discuss Parent at least five (5) Business Days in advance (the “Notice Period”), to the effect that the Company Board has received a bona fide written Acquisition Proposal that is not withdrawn and negotiate that the Company Board has determined in good faith with Parent’s Representatives constitutes a Superior Proposal and, absent any proposed modifications revision to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to this Section 7.5(e), which notice shall specify the Superior Proposal which forms the basis for such Company Adverse Recommendation Change, including the identity of the party making the Superior Proposal and the material terms thereof, and shall include copies of all relevant documents relating to such Superior Proposal;
(iv) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, (1) negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal, and (2) permit Parent and the Parent Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of this Section 7.5 (including Section 7.5(e)) with respect to such new Determination Notice and the revised Superior Proposal contemplated thereby and in that event the Notice Period shall extend until the later of (x) expiration of the then pending Notice Period or (y) the date that is three (3) Business Day period Days from the date of the Determination Notice following delivery by such material revisions to the Acquisition Proposal; and
(v) the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to validly terminated this Agreement in accordance with Section 9.1(c)(ii), including the payment of the Company a written proposal capable Termination Fee, in accordance with Section 9.4(b)(i). None of being accepted by the Company, any Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodSubsidiary, the Company Board or any committee of the Company Board shall have determined in good faith (after consultation enter into any agreement with outside legal counsel), after considering the terms any Person to limit or not to give prior notice to Parent of such proposal by Parent, that its intention to effect a Company Board Adverse Recommendation Change is still necessary or to terminate this Agreement in light of such a Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsProposal.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 2 contracts
Samples: Merger Agreement (Southwall Technologies Inc /De/), Merger Agreement (Solutia Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b6.2(b) and Section 6.3(c)hereof, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “Company Board Recommendation”).
(b) Neither Subject to the terms of this Section 6.2(b), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifforegoing, at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening Event, Requisite Stockholder Approval the Company Board may effect a Company Board Recommendation Change provided that if and only if either:
(i) (A) the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal other than as a result of a breach or violation of the terms of Section 6.1 hereof, (B) neither the Company nor any of its representatives shall have breached or violated the provisions of Section 6.1 hereof, (C) the Company Board reasonably determines in good faith (after consultation with outside legal counsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (E) below), that, in light of such Superior Proposal, the Company Board is required to effect a Company Board Recommendation Change in order to comply with its fiduciary duties to the Company Stockholders under Delaware Law, (D) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days notice thereof and the opportunity to meet with the Company Board and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and (E) Parent shall not have made, within five (5) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change pursuant to this clause (i), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal; or
(ii) except for a Company Board Recommendation Change effected (or proposed to be effected) in response to or in connection with a Superior Proposal (it being understood and hereby agreed that any Company Board Recommendation Change effected (or proposed to be effected) in response to or in connection with a Superior Proposal will be exclusively made only pursuant to the immediately preceding clause (i)), (A) the Company Board reasonably determines in good faith (after consultation with outside legal counsel) that the failure Company Board is required to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or , and (B) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days notice thereof and the opportunity to meet with the Company Board and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith the purported basis for the proposed Company Board Recommendation Change, Parent’s reaction thereto and any possible modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of the terms and conditions of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than Agreement in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsresponse thereto.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (iiprovided that, in each case, any statement(s) making any disclosure to the Company Stockholders that made by the Company Board determines in good faith (after consultation with its outside legal counselpursuant to Rule 14e-2(a) that under the failure to make such disclosure would reasonably Exchange Act or Rule 14d-9 under the Exchange Act shall be expected to be a breach of its fiduciary duties subject to the Company Stockholders under applicable Delaware Law; providedterms and conditions of this Agreement, however, that in no event shall this Section 6.3(c) affect including the obligations provisions of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureArticle VIII hereof.
Appears in 2 contracts
Samples: Merger Agreement (Sirenza Microdevices Inc), Merger Agreement (Micro Linear Corp /Ca/)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.3(b) and Section 6.3(c5.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable advisable, or publicly propose to adopt, approve, recommend, endorse or otherwise declare advisable, the adoption of any Acquisition Takeover Proposal (it being understood that, only with respect to that a tender offer or exchange offer, taking a neutral position or no position (other than in a “stop-look-and-listen” communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) Act with respect to any Acquisition Takeover Proposal that is a tender offer or exchange offer shall not be considered a breach of this clause (iiiii)), (iii) approve or recommend, or cause or permit the Company to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar document or contract constituting or relating directly or indirectly to, or that contemplates or is intended or could reasonably be expected to result directly or indirectly in, a Takeover Proposal or (iv) resolveauthorize, commit or agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Adverse Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, time at which the Company Board receives a Superior Proposal or there occurs an Intervening EventStockholder Written Consent is executed and delivered to Parent in accordance with Section 6.1(a) (the “Written Consent Date”), the Company Board may effect a Company Board Adverse Recommendation Change provided that Change:
(i) if the Company Board (A) receives a Takeover Proposal that it determines in good faith (after having consulted with its financial advisor and outside legal counsel) to be a Superior Proposal, (B) concludes in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to effect a Company Board Adverse Recommendation Change would reasonably be expected to be constitute a breach of its the fiduciary duties of the directors of the Company to the Company Stockholders Company’s stockholders under applicable Delaware Law, Law and in the case of a Superior Proposal, the Company Board (C) approves or recommends such Superior Proposal; or
(ii) in response to a fact, event, change, development or set of circumstances that affects the business, assets or operations of the Company has notified Parent in writing that it intends is unknown to effect a the Company Board Recommendation Changeat and prior to the execution of this Agreement (such fact, describing event, change, development or set of circumstances, an “Intervening Event,” it being understood that in reasonable detail no event shall the reasonsreceipt, including existence or terms of a Takeover Proposal constitute an Intervening Event), if the material terms Company Board has concluded in good faith (to the extent applicable, after consultation with its financial advisor and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description outside legal counsel) that, in reasonable detail light of such Intervening Event, as the case may be, for such failure of the Company Board to effect a Company Adverse Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not would reasonably be expected to constitute a Company Board Recommendation Change for purposes breach of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to fiduciary duties of the terms and conditions directors of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders Company’s stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing contained in this Agreement shall prohibit the Company Board from (i) from taking and disclosing to the Company Stockholders its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and or (ii) making any disclosure to the Company Stockholders Company’s stockholders that the Company Board determines to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of fulfill its fiduciary duties to the Company Stockholders under or satisfy applicable Delaware Lawstate or federal securities Laws; provided, however, that in no event shall this Section 6.3(cany disclosure of a position contemplated by Rule 14e-2(a) affect of the obligations Exchange Act other than a rejection of any applicable Takeover Proposal, a reaffirmation of the Company set forth Board Recommendation or a “stop-look-and-listen” communication made in Sections 6.2 and 6.3; and provided, further, that any such disclosure will compliance with Rule 14d-9(f) promulgated under the Exchange Act shall be deemed to be a Company Board Adverse Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureand may be made only in compliance with this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Tempur Pedic International Inc), Merger Agreement (Sealy Corp)
Company Board Recommendation. (a) Subject The Company hereby consents to the terms of Offer and represents that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Unless the Company Board has made a Company Adverse Change Recommendation in accordance with Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b).
(b) Neither , neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend qualify or modify in a manner adverse to ParentParent or Purchaser, or resolve to or publicly propose or announce any intention to withhold, withdraw, amend qualify, or modify in a manner adverse to ParentParent or Purchaser, the Company Board Recommendation, (ii) remove the Company Board Recommendation from or fail to include the Company Board Recommendation in the Schedule 14D-9, or (iii) approve, adopt, endorse, recommend or declare advisable, or publicly propose to approve, recommendadopt, endorse recommend or otherwise declare advisable the adoption of advisable, any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than any action described in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iviii) being referred to herein as an a “Company Board Recommendation ChangeAdverse Change Recommendation”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Acceptance Time:
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not result from or arise out of a breach of Section 5.6) from any Person that has not been withdrawn and after consultation with outside legal counsel and independent financial advisors of nationally recognized reputation, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, (x) the Company Board may effect make a Company Board Recommendation Adverse Change provided that Recommendation, or (iy) the Company may terminate this Agreement to substantially concurrently therewith enter into a Specified Agreement with respect to such Superior Offer and pay the Termination Fee pursuant to Section 8.3, in each case if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) counsel and independent financial advisors of nationally recognized reputation, that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be constitute a breach of its the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, members of the Company Board approves or recommends such Superior Proposalunder applicable Laws; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Changeor terminate this Agreement pursuant to Section 8.1(f) at least three Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not in and of itself, describing in reasonable detail constitute a Company Adverse Change Recommendation or a termination of this Agreement); and (C) (1) pursuant to such Determination Notice the reasonsCompany shall have stated that the Company has received a Superior Offer that did not arise out of a breach of Section 5.6 and made available to Parent the identity of the offeror, including a summary of the material terms and conditions of any such Superior the Acquisition Proposal and a copy copies of the final form of any all written materials related agreements or a description thereto in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”accordance with Section 5.6(d) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreementincluding written agreements and financing arrangements with respect to such Acquisition Proposal); , (iii2) if requested by Parent, the Company shall have made given Parent the three Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any ) with respect to such proposed modifications revisions or other proposal, if any, by Parent (to the extent Parent wishes to negotiate) to enable Parent to determine whether to propose revisions to the terms and conditions of this Agreement during or any other agreement related to the three Transactions such that such Superior Offer will no longer constitute a Superior Offer hereunder (3) Business Day period following delivery by after considering the Company to Parent results of such Recommendation Change Notice; negotiations and (iv) if Parent shall have delivered giving effect to the Company a written proposal capable proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodnationally recognized reputation, the Company Board shall have determined determined, in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parentfaith, that such Acquisition Proposal continues to be a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) would reasonably be expected to constitute a breach of the fiduciary duties of the members of the Company Board Recommendation Change is still necessary in light under applicable Laws and (4) if the Company intends to terminate this Agreement to enter into a Specified Agreement, the Company shall have complied with Section 8.1(f). The provisions of such Superior this Section 6.1(b) shall also apply to any material amendment (which shall include any change to the financial terms, including the form, amount and timing of payment of consideration) to any Acquisition Proposal or Intervening Event any successive Acquisition Proposals and require a new Determination Notice, except that, in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any case of material amendment or modification amendments to any Superior Proposal will Acquisition Proposal, the references to three Business Days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, two Business Days.
(ii) other than in the event of any amendment connection with a Superior Offer (which shall be subject to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit Section 6.1(b)(i)), the Company Board from may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (iA) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (faith, after consultation with its the Company’s outside legal counselcounsel and independent financial advisors of nationally recognized reputation, that the failure to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the members of the Company Board under applicable Laws; (B) the Company shall have given Parent a Determination Notice at least three Business Days prior to making any such Company Adverse Change Recommendation; and (C) (1) pursuant to such Determination Notice the Company shall have specified the Change in Circumstance in reasonable detail including the facts and circumstances that render a Company Adverse Change Recommendation appropriate in the determination of the Company Board, (2) the Company shall have given Parent three Business Days after the delivery of the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives to negotiate in good faith with Parent) with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors of nationally recognized reputation, the Company Board shall have determined, in good faith, that the failure to make such disclosure the Company Adverse Change Recommendation would reasonably be expected to be constitute a breach of its the fiduciary duties to of the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations members of the Company set forth Board under applicable Laws. The provisions of this Section 6.1(b) shall also apply to any material change in Sections 6.2 the facts and 6.3; circumstances relating to such Change in Circumstance and providedrequire a new Determination Notice, furtherexcept that, that any in the case of material changes in the aggregate facts and circumstances relating to such disclosure will Change in Circumstance, the references to three Business Days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five two Business Days of such disclosureDays.
Appears in 2 contracts
Samples: Merger Agreement (Primo Water Corp), Merger Agreement (Cott Corp /Cn/)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption advisable, any Acquisition Proposal, (C) after public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three (3) business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the two (2) or no position four (4) business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within ten (10) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or cause or allow the Company to execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Offer Acceptance Time, and subject to compliance with the other provisions of this Section 6.1:
(i) if any Acquired Company has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Change Recommendation, or (y) provided that no Acquired Company is in breach of Section 5.3 in any material respect and in a manner that led to such Acquisition Proposal and subject to the other provisions of Section 8.1(e), the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e) at least four (4) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation or termination) and, if requested in writing by Parent during such four (4)-business day period, shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(c), as well as a copy of any acquisition agreement with respect to such Acquisition Proposal and a copy of any financing commitments relating thereto (or, if not provided in writing to the Company, a written summary of the material terms thereof), (2) the Company shall have given Parent the four (4)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. Issuance of any “stop, look and listen” communication made in compliance with by or on behalf of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, taking and disclosing a position or otherwise making any disclosure as is required under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or otherwise complying with applicable Legal Requirements shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or other material amendment to any Acquisition Proposal and require a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, all references to “four (4) business days” shall be deemed to be “two (2) business days”); and
(ii) other than in connection with a Superior Offer (which shall be subject to Section 6.1(b)(i)), the Board of Directors may make a Company Adverse Change Recommendation in response to an Intervening Event if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four (4) business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such four (4)-business day period shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any Acquisition Proposal shall be considered a breach revisions to the terms of this clause (iii)), Agreement or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything another proposal to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect extent proposed by Parent so that a Company Board Adverse Change Recommendation Change provided that would no longer be necessary; and (iC) (1) the Company Board determines shall have specified in good faith reasonable detail the facts and circumstances that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the four (4)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of facts and circumstances specified by the Company set forth in Sections 6.2 pursuant to clause (C)(1) above and 6.3; and providedrequire a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, further, that any such disclosure will all references to “four (4) business days” shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure“two (2) business days”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kite Pharma, Inc.), Merger Agreement (Gilead Sciences Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.3(b) and Section 6.3(c5.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt authorize this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof (including the Special Committee) shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iiA) withhold, withdraw, amend or modify in a manner adverse to ParentAcquisition in any material respect, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentAcquisition in any material respect, the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, approve or recommend, endorse or otherwise declare advisable the adoption of propose publicly to adopt, approve or recommend, any Acquisition Superior Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than any action in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”); or (ii) adopt, approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement (each, an "Alternative Acquisition Agreement") constituting or related to, or that would reasonably be expected to result in, any Acquisition Proposal (other than a confidentiality Agreement referred to in Section 5.2); provided that a “stop, look and listen” communication by the Company Board or the Special Committee, to the Company Shareholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Effective Time, (x) the Company Board receives a Superior Proposal or there occurs an Intervening Event(acting through the Special Committee, the Company Board if in existence) may effect a Company Board Recommendation Change provided that (i) if the Company Board (acting through the Special Committee) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders Shareholders under applicable Delaware Law, Law and (y) if the Company Board determines in good faith (after consultation with the case of Company's outside financial and legal advisors) that an Acquisition Proposal constitutes a Superior Proposal, then the Company Board approves or recommends may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; Proposal or terminate this Agreement in accordance with Section 9.1(d).
(iic) the The Company has notified Parent in writing that it intends shall not be entitled to effect a Company Board Recommendation Change, describing in reasonable detail Change or terminate this Agreement as permitted under Section 9.1(d) unless the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change has provided written notice (a “"Recommendation Change Notice”") at least fifteen (it being understood 15) Business Days in advance to Acquisition advising Acquisition that the Recommendation Change Notice shall not constitute Company Board intends to make a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parentor enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that either constitutes or could reasonably be expected to constitute a Superior Proposal, as applicable, and specifying the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to reasons therefor, including the terms and conditions of this Agreement during such Acquisition Proposal that is the three (3) Business Day period following delivery basis of the proposed action by the Company to Parent Board (including the identity of such Recommendation Change Notice; the Person making the Acquisition Proposal and any financing materials related thereto, if any) and following the end of the fifteen (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (315) Business Day period, the Company Board and the Special Committee shall have determined in good faith (after consultation with outside legal counsel)faith, after considering taking into account any changes to this Agreement proposed in writing by Acquisition in response to the terms notice of such proposal by ParentSuperior Proposal, that the Acquisition Proposal giving rise to the notice of Superior Proposal continues to constitute a Superior Proposal. Notwithstanding anything herein to the contrary, should Acquisition respond to the Recommendation Change Notice within such fifteen (15) Business Day period with a proposal equivalent to the proposed Superior Proposal, then the revised proposal from Acquisition shall be recommended by the Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to as the Company Stockholders under applicable Delaware LawBoard Recommendation. Any material amendment to the financial terms or modification to any other material amendment of any such Superior Proposal will be deemed to be shall require a new notice of Superior Proposal for purposes and the Company shall be required to comply again with the requirements of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports5.3(c).
(cd) Nothing in this Agreement shall prohibit the Company Board or the Special Committee, from (i) complying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, including taking and disclosing to the Company Stockholders Shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange ActAct (or any similar communication to the Company Shareholders), and (ii) making any disclosure to the Company Stockholders Shareholders that the Company Board or the Special Committee, if in existence, determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders Shareholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (China Yida Holding, Co.), Merger Agreement (China Yida Holding, Co.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) approve, adopt, endorse, recommend or declare advisable, or publicly propose to approve, recommendadopt, endorse endorse, recommend or otherwise declare advisable advisable, any Acquisition Proposal, (C) after the adoption public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three (3) business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or no position exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to publicly reaffirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within ten (other than in a communication made in compliance with 10) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with respect the SEC or disseminated to any Acquisition Proposal shall be considered a breach of this clause (iii))the Company’s stockholders, or (ivF) resolve, agree or fail to publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms reaffirm the Company Board Recommendation within five Business Days of such disclosure.(5) business days after Parent so requests in writing (any action described in this clause (i) being referred to as a
Appears in 2 contracts
Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Company Board Recommendation. (a) Subject to the terms of Except as provided in Section 6.3(b) and Section 6.3(c5.02(f), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (ii)(A) fail to make withhold or withdraw the Company Board Recommendation, (B) modify, qualify or amend the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose (C) fail to withhold, withdraw, amend or modify in a manner adverse to Parent, include the Company Board RecommendationRecommendation in the Proxy Statement, (iiiD) adopt, approve, recommend, approve or publicly endorse or otherwise declare advisable the adoption of recommend any Acquisition Proposal, or refrain from recommending against any Acquisition Proposal (it being understood that, only with respect to that is a tender offer or exchange offer, taking within ten (10) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act, or (E) fail to publicly reaffirm the Company Board Recommendation within ten (10) business days after receipt of a neutral position or no position written request by Parent to make such public reaffirmation following the receipt by the Company of a public Acquisition Proposal (other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer covered by clause (D)) that has not been withdrawn; provided, that Parent may make any such request only once in any ten (10) business day period and only once for each such public Acquisition Proposal and once for each public material amendment to such Acquisition Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”, it being understood that a customary “stop, look or listen” communication made in compliance with pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct shall not be prohibited and shall not, in and of itself, constitute an Adverse Recommendation Change) with respect or (ii) authorize, cause or permit the Company or any of its Subsidiaries to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment Acceptable Confidentiality Agreement pursuant to this Agreement and to the extent required to be disclosed in any Section 5.02(a) (each, a “Company SEC ReportsAcquisition Agreement”).
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 2 contracts
Samples: Merger Agreement (Navigators Group Inc), Merger Agreement (Hartford Financial Services Group Inc/De)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iiA) withhold, withdraw, amend amend, qualify or modify in a manner adverse to ParentNewco, or publicly propose to withhold, withdraw, amend amend, qualify or modify in a manner adverse to ParentNewco, the Company Board Recommendation, (iiiB) adopt, approve, recommend, endorse approve or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree recommend or publicly propose to take adopt, approve or recommend an Acquisition Proposal, (C) fail to publicly reaffirm the Company Board Recommendation in the absence of a publicly announced Acquisition Proposal within two (2) Business Days after Newco so requests in writing, (D) fail to recommend against any publicly announced Acquisition Proposal and reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days following the public announcement of such actions Acquisition Proposal and in any event at least two (each such foregoing 2) Business Days prior to the Company Stockholders Meeting, or (E) fail to include the Company Board Recommendation in the Proxy Statement (any action or failure to act described in clauses (iA) through (iv) being referred to herein as an E), a “Company Board Recommendation Change”). Notwithstanding ; provided, however, that a “stop, look and listen” communication by the foregoing Company Board or anything any authorized committee thereof to the contrary set forth in this AgreementCompany Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, ifor any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change; and provided further, that at any time prior to the Appointment Timereceipt of the Requisite Stockholder Approval, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board and/or any authorized committee thereof may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation accordance with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this AgreementSection 5.3(f); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cb) Nothing in this Agreement shall prohibit the Company Board or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines or any authorized committee thereof shall have determined to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of comply with its fiduciary duties to the Company Stockholders under applicable Delaware Lawlaw; provided, however, that that, in no event shall this Section 6.3(ceither such case, any such statement(s) affect the obligations of or disclosures made by the Company set forth in Sections 6.2 Board or any authorized committee thereof shall be subject to the terms and 6.3; conditions of this Agreement, including the provisions of Article VIII and provided, further, that any such disclosure will shall be deemed to be a Company Board Recommendation Change unless the Company Board of Directors expressly recommends against any publicly announced Acquisition Proposal and publicly reaffirms the Company Board Recommendation within five Business Days the time period set forth in Section 6.5(a)(D) above.
(c) No Company Board Recommendation Change shall change the approval of the Company Board for purposes of causing any anti-takeover laws to be inapplicable to the transactions contemplated by this Agreement or, for the avoidance of doubt, relieve the Company of its obligations under Sections 6.3 and 6.4 to convene and hold the Company Stockholder Meeting (unless this Agreement is earlier terminated). The Company shall promptly notify Newco of any breach, to the Knowledge of the Company, of any existing confidentiality agreement (including the standstill provisions thereof) by the counterparty thereto, or any request by the counterparty to any existing confidentiality agreement that the Company or the Company Board waive the standstill provision thereof or authorize or give permission to such disclosurecounterparty to take actions that would otherwise be prohibited by the standstill provisions thereof. To the extent Newco and/or the Company believes that there has been a breach of any existing confidentiality agreement (including the standstill provisions thereof) by the counterparty thereto, upon Newco’s request, the Company shall take all reasonable actions to enforce such existing confidentiality agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sumtotal Systems Inc), Merger Agreement (Vista Equity Partners Fund III LP)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.4(b) and Section 6.3(c7.4(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, Offer and tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, publicly approve, recommend, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position each of clauses (other than in a communication made in compliance with Rule 14d-9(fx) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)y), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, in response to the Company Board receives receipt of a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that or terminate this Agreement pursuant to Section 9.1(e)(i) if all of the following conditions in clauses (i) through (iv) are met:
(i) A Superior Proposal with respect to the Company has been made and has not been withdrawn or an Intervening Event has occurred;
(ii) The Company shall have (A) delivered to Parent written notice (a “Change of Recommendation Notice”) at least four (4) Business Days prior to effecting such Company Board determines Recommendation Change, which notice shall state expressly (x) that it has received a Superior Proposal or an Intervening Event has occurred, (y) in the case of a Superior Proposal, the material terms and conditions of such Superior Proposal and the identity of the Person or group (as defined under Section 13(d) of the Exchange Act) making the Superior Proposal, or, in the case of an Intervening Event, the material facts and circumstances related such Intervening Event, and (z) that it intends to terminate this Agreement pursuant to Section 9.1(e)(i) or effect a Company Board Recommendation Change, and (B) in the case of a Superior Proposal, provided to Parent a copy of all written proposals provided by such Person or group in connection with such Superior Proposal (it being understood and agreed that delivery of a Change of Recommendation Notice shall not, by itself, be deemed to be a Company Board Recommendation Change);
(iii) The Company Board has concluded in good faith (faith, after consultation with outside legal counsel) , that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; and
(iiiv) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such The Superior Proposal and a copy or Intervening Event that is the subject of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change did not result from a material breach by the Company of any of the provisions set forth in Section 6.2 or this Section 7.4.
(a “c) During such four (4) Business Days after delivering the Change of Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available provide Parent a reasonable opportunity to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications make such adjustments to the terms and conditions of this Agreement (the “Modified Terms”), and shall consider in good faith such Modified Terms. In the event Parent proposes Modified Terms, then, notwithstanding anything in Section 7.4(b) to the contrary, the Company Board may not terminate this Agreement pursuant to Section 9.1(e)(i) or effect a Company Board Recommendation Change unless and until the Company Board concludes in good faith, after considering the Modified Terms and consultation with outside legal counsel and financial advisors, that the failure to terminate this Agreement pursuant to Section 9.1(e)(i) or to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law. In the event that there is an amendment to the terms of any Superior Proposal (including any revision in the amount, form or mix of consideration the Company Stockholders would receive as a result of the Superior Proposal), the Company shall promptly and within one (1) Business Day notify Parent of such revision and provide Parent a reasonable opportunity to make additional Modified Terms and the period during which the Company shall consider and negotiate in good faith such additional Modified Terms with Parent shall be an additional three (3) Business Day period following delivery by Days after the time the Company provides notification to Parent of such Recommendation Change Notice; revisions and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that may not terminate this Agreement pursuant to Section 9.1(e)(i) or effect a Company Board Recommendation Change is still necessary unless and until the Company Board concludes in light of such Superior Proposal good faith, after considering the additional Modified Terms and consultation with outside legal counsel and financial advisors, that the failure to terminate this Agreement pursuant to Section 9.1(e)(i) or Intervening Event in order to comply effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that with respect to which the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 2 contracts
Samples: Merger Agreement (LKQ Corp), Merger Agreement (Coast Distribution System Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.4(b) and Section 6.3(c7.4(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, Offer and tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Except to the extent permitted by this Section 7.4, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Acquisition Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Acquisition Sub, the Company Board Recommendation, (iiiy) approve, adopt, approve, recommenddeclare advisable, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions approve, adopt, declare advisable, endorse or recommend an Acquisition Proposal (each such foregoing action or failure to act in of clauses (ix) through and (iv) being referred to herein as an y), a “Company Board Recommendation Change”), or (z) cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, (1) in response to the Company Board receives receipt of a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that or (2) in response to the receipt of a Superior Proposal, the Company may terminate this Agreement in order to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal pursuant to Section 9.1(e), in either case, if all of the following conditions in clauses (i) through (iv) and the last paragraph of this Section 7.4(b) are met:
(i) A Superior Proposal with respect to the Company has been made and has not been withdrawn or an Intervening Event has occurred;
(ii) The Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least four (4) Business Days prior to effecting such Company Board determines Recommendation Change or termination of this Agreement, which notice shall state expressly (x) that it has received a Superior Proposal or an Intervening Event has occurred, (y) in the case of a Superior Proposal, the material terms and conditions of such Superior Proposal (including any financing arrangements) and the identity of the Person or group (as defined under Section 13(d) of the Exchange Act) making such Superior Proposal and a copy of all written materials provided by such Person or group in connection with such Superior Proposal (provided that the Company may redact, and not disclose, the identity of the Person or group making any such Superior Proposal if disclosure of such identity would violate the terms of a Contract by which the Company is bound as of the date hereof), or, in the case of an Intervening Event, the material facts and circumstances related to such Intervening Event, and (z) that it intends to terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change (it being understood and agreed that delivery of a Change of Recommendation Notice shall not, by itself, be deemed to be a Company Board Recommendation Change);
(iii) The Company Board has concluded in good faith (faith, after consultation with outside legal counsel) , that the failure to effect a Company Board Recommendation Change or terminate this Agreement pursuant to Section 9.1(e) would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in ; and
(iv) In the case of a Superior Proposal, the Company Board approves Superior Proposal did not involve a material breach by the Company, any of its Subsidiaries or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions any of their respective representatives of any such Superior Proposal and a copy of the final form provisions set forth in Section 6.2 or this Section 7.4. During such four (4) Business Days after delivering the Change of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available provide Parent a reasonable opportunity to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications make adjustments to the terms and conditions of this Agreement during (the three “Modified Terms”), and shall consider and negotiate (3to the extent Parent desires to negotiate) in good faith with Parent and its representatives such Modified Terms. Notwithstanding anything in this Section 7.4(b) to the contrary, the Company Board may not terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change until the expiration of such four (4) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, unless and until the Company Board shall have determined concludes in good faith faith, after considering the Modified Terms (after if any are proposed by Parent) and consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to terminate this Agreement pursuant to Section 9.1(e) or to effect a Company Board Recommendation Change is would still necessary in light of such Superior Proposal or Intervening Event in order to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any In the event of any material amendment or modification to any Superior Proposal will Proposal, the Company shall promptly (but in any event within twenty-four (24) hours of occurrence) notify Parent of any such amendment or modification and, for each of the first three (3) such amendments or modifications to such Superior Proposal, the Company Board and its representatives shall be deemed required to be negotiate in good faith with Parent regarding any Modified Terms proposed by Parent in response to such amendment or modification until the later to occur of two (2) Business Days after the Company Board provides written notice of such amendment or modification to Parent and the end of the original four (4) Business Day period described above. In the event there is a new Superior Proposal for purposes of Company Board Recommendation Change made in compliance with this Section 6.3. The 7.4(b) with respect to a Superior Proposal, the Company shall keep confidential any proposals made only enter into an Alternative Acquisition Agreement with respect thereto by Parent to revise the terms of this Agreement, other than in the event of any amendment to terminating this Agreement and pursuant to the extent required to be disclosed in any Company SEC ReportsSection 9.1(e).
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations taking of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such position or making of any such disclosure will be deemed to contemplated by this Section 7.4(c) may be a Company Board Recommendation Change, and, if so, shall not affect the Company’s and the Company Board’s duties under this Section 7.4, including with respect to the Change unless of Recommendation Notice and the Board of Directors publicly reaffirms the requirements for making a Company Board Recommendation within five Business Days of such disclosureChange.
Appears in 2 contracts
Samples: Merger Agreement (Receptos, Inc.), Merger Agreement (Celgene Corp /De/)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.04(c), the Company Board shall recommend that (i) make the holders of Company Shares accept Recommendation and (ii) include the Offer, tender their Company Shares to Acquisition Sub pursuant to Recommendation in the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”)Proxy Statement.
(b) Neither Subject to Section 5.04(c), neither the Company Board nor any committee thereof shall (i) fail withdraw, qualify, modify, change or amend in any manner adverse to make Parent or Merger Sub, the Company Board Recommendation to the holders of the Company SharesRecommendation, (ii) withhold, withdraw, amend approve or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendationrecommend any Acquisition Proposal, (iii) adoptexcept in connection with a termination of this Agreement pursuant to Section 7.01(f), approve, recommend, endorse permit the Company or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect Company Subsidiary to a tender offer or exchange offer, taking a neutral position or no position enter into any Contract (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Actconfidentiality agreement as contemplated by Section 5.03(a)) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or (iv) resolveexcept in connection with a termination of this Agreement pursuant to Section 7.01(f), agree resolve or publicly propose to take any such actions (each such foregoing action or failure to act described in clauses (i) through (iviii) (each of the foregoing actions described in clauses (i) through (iii) being referred to herein as an a “Company Board Recommendation ChangeChange in Recommendation”).
(c) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Change in Recommendation Change provided that at any time before receipt of the Company Stockholder Approval, if either:
(i) (A) the Company Board has received an Acquisition Proposal (that has not been withdrawn) that constitutes a Superior Proposal, (B) the Company Board determines in good faith (after consultation with its outside legal counselcounsel and financial advisor and after considering in good faith any counter-offer or proposal made by Parent during the five (5) day period contemplated by clause (D) below) that the failure to effect a Company Board Change in Recommendation Change would reasonably be expected to be a breach in light of such Superior Proposal is inconsistent with its fiduciary duties obligations to the stockholders of the Company Stockholders under applicable Delaware LawLegal Requirements, and (C) at least five (5) days before such Company Change in the case of a Superior ProposalRecommendation, the Company Board approves or recommends shall have provided to Parent a written notice (a “Notice of Recommendation Change”) of its intention to make such Superior Proposal; Company Change in Recommendation (ii) the Company has notified Parent which notice shall not be deemed to be, in writing that it intends to effect and of itself, a Company Board Recommendation ChangeChange in Recommendation), describing in reasonable detail the reasons, including specifying the material terms and conditions of any such Superior Proposal, including a copy of such Superior Proposal and identifying the Person making such Superior Proposal, (D) during the five (5) day period following Parent’s receipt of a copy Notice of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by ParentChange, the Company shall have made given Parent the opportunity to meet with the Company and its Representatives available to discuss Representatives, and negotiate at Parent’s request, shall have negotiated in good faith with Parent’s Representatives any proposed modifications regarding the terms of possible revisions to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; Agreement, and (ivE) if Parent shall not, within five (5) days following Parent’s receipt of a Notice of Recommendation Change, have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, made an offer that the Company Board shall have determined determines in good faith (after consultation with its outside legal counsel), after considering counsel and financial advisor) to be at least as favorable to the terms stockholders of the Company as such proposal by Parent, Superior Proposal; or
(ii) other than in connection with a Superior Proposal (it being understood and hereby agreed that the Company Board shall not effect a Company Board Change in Recommendation Change is still necessary in light of such connection with a Superior Proposal or Intervening Event in order to comply with its fiduciary duties other than pursuant to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes immediately preceding clause (i) of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement5.04(c)), other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cA) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be effect a breach of Company Change in Recommendation is inconsistent with its fiduciary duties obligations to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations stockholders of the Company set forth under applicable Legal Requirements, (B) at least five (5) days prior to such Company Change in Sections 6.2 and 6.3; and providedRecommendation, further, that any the Company shall have provided to Parent a Notice of Recommendation Change of its intention to make such disclosure will Company Change in Recommendation (which notice shall not be deemed to be be, in and of itself a Company Board Change in Recommendation), specifying in reasonable detail the circumstances for such proposed Company Change in Recommendation, and (C) during the five (5) day period following Parent’s receipt of a Notice of Recommendation Change unless Change, the Board Company shall have given Parent the opportunity to meet with the Company and its Representatives, and at Parent’s request, shall have negotiated in good faith regarding the terms of Directors publicly reaffirms possible revisions to the terms of this Agreement.
(d) Nothing in this Agreement shall prohibit the Company Board Recommendation within five Business Days from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act or (ii) making any disclosures to any stockholder of the Company that the Company Board determines in good faith (after consultation with its outside legal counsel) that the Company Board is required to make in order to comply with its fiduciary obligations to the stockholders of the Company under applicable Legal Requirements or with any other applicable Legal Requirements. In addition, it is understood and agreed that, for purposes of this Section 5.04, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto and contains a “stop-look-and-listen communication” shall not be deemed a Company Change in Recommendation.
(e) Notwithstanding anything to the contrary contained in this Agreement, (i) the obligation of the Company to call, give notice of, convene and hold the Special Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal or by any Company Change in Recommendation, and (ii) the Company shall not submit to the vote of its stockholders any Acquisition Proposal, unless and until this Agreement is terminated in accordance with its terms.
(f) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Legal Requirement) or otherwise cause such disclosurerestrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement pursuant to Section 7.01(f).
Appears in 2 contracts
Samples: Merger Agreement (Ligand Pharmaceuticals Inc), Merger Agreement (Neurogen Corp)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b).
(b) Neither , neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iii)(A) withhold, withdraw, amend qualify or modify in a manner adverse to ParentParent or Purchaser, or resolve to or publicly propose or announce any intention to withhold, withdraw, amend qualify, or modify in a manner adverse to ParentParent or Purchaser, the Company Board Recommendation, (iiiB) remove the Board Recommendation from or fail to include the Company Board Recommendation in the Schedule 14D-9, (C) approve, endorse, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal, or (D) fail to include the Company Board Recommendation in (or remove the Company Board Recommendation from) the Schedule 14D-9 (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend, endorse submit to stockholders or otherwise declare advisable the adoption advisable, or propose to adopt, approve, recommend, submit to stockholders or declare advisable, or allow any Acquired Corporation to execute or enter into any letter of intent (whether or not binding), term sheet, merger agreement, acquisition agreement, option agreement, agreement in principle or similar agreement constituting or related to, or that is intended to or would reasonably be likely to lead to, any Acquisition Proposal (it being understood thatProposal, only or requiring, or reasonably likely to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise be reasonably likely to materially impede, interfere with respect to a tender offer or exchange offerbe inconsistent with, taking a neutral position or no position the Transactions (other than in a communication made in compliance with Rule 14d-9(fan Acceptable Confidentiality Agreement) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as Contract, an “Company Board Recommendation ChangeAlternative Acquisition Agreement”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that :
(i) if the Company Board determines in good faith has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.4) from any Person that has not been withdrawn and after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, counsel and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfinancial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer, (x) the Company Board may make a Company Adverse Change Recommendation, or (y) the Company may terminate this Agreement to substantially concurrently therewith enter into a Specified Agreement with respect to such Superior Offer and pay the Termination Fee pursuant to Section 8.3, in each case if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel), after considering the terms of such proposal by Parent, that the failure to take such action would constitute a breach of the fiduciary duties of the Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Laws; (B) the Company shall keep confidential have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) at least four (4) business days prior to making any proposals such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have made by available to Parent the identity of the offeror, a summary of the material terms and conditions of the Acquisition Proposal and copies of all written materials related thereto in accordance with Section 5.4(d), (2) the Company shall have given Parent the four (4) business days after the Determination Notice to revise propose revisions to the terms of this AgreementAgreement or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent) with respect to such proposed revisions or other proposal, other than in if any, (3) after considering the event results of any amendment to this Agreement such negotiations and giving effect to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors, the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Actshall have determined, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) faith, that such Acquisition Proposal is a Superior Offer and that the failure to make such disclosure the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) would reasonably be expected to be constitute a breach of its the fiduciary duties of the Company Board to the Company Stockholders under applicable Delaware LawLaws, and (4) if the Company intends to terminate this Agreement to enter into a Specified Agreement, the Company shall have complied with Section 8.1(f); provided, however, that in no event shall the provisions of this Section 6.3(c6.1(b)(i) affect shall also apply to any material amendment to any Acquisition Proposal or any successive Acquisition Proposals and require a new Determination Notice, except that, in the obligations case of material amendments to any Acquisition Proposal, the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will references to four (4) business days shall be deemed to be three (3) business days; or
(ii) the Company Board may make a Company Adverse Change Recommendation under this Section 6.2(b)(ii) if (and only if): (A) the decision to make such a Company Adverse Change Recommendation is not in connection with an Acquisition Proposal, (B) an Intervening Event shall have occurred; (C) the Company’s Board Recommendation Change unless of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would constitute a breach of the fiduciary duties of the Board of Directors publicly reaffirms of the Company to the Company’s stockholders under applicable Legal Requirements; (D) the Company shall have given Parent a Determination Notice at least four (4) business day prior to making any such Company Adverse Change Recommendation; and (E)
(1) the Company shall have specified in reasonable detail the Intervening Event and the reasons for the Company Adverse Change Recommendation, (2) the Company shall have given Parent the four (4) business days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent) with respect to such proposed revisions or other proposal, if any, so that such Intervening Event would no longer necessitate a Company Adverse Change Recommendation, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors, the Company Board shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation within five Business Days in response to such Intervening Event would constitute a breach of the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws; provided, that the provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and/or circumstances relating to such disclosureIntervening Event and require a new Determination Notice, except that, in the references to four (4) business days shall be deemed to be three (3) business days.
Appears in 2 contracts
Samples: Merger Agreement (Ikanos Communications, Inc.), Merger Agreement (Ikanos Communications, Inc.)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors of the Company nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal, or (it C) fail to include the Company Board Recommendation in the Schedule 14D-9 (any action described in this clause (i) being understood thatreferred to as a “Company Adverse Change Recommendation”) or (ii) approve, only with respect recommend or declare advisable, or propose to a tender offer approve, recommend or exchange offerdeclare advisable, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under allow the Exchange Act) Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to Purchaser accepting, for the Appointment first time, for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that ”):
(i) if the Company Board determines in good faith has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.3) from any Person that has not been withdrawn and after consultation with outside legal counsel and financial advisors, the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Company’s Board of Directors may make a Company Adverse Change Recommendation and/or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, in each case if and only if: (A) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be likely constitute a breach of its the fiduciary duties of the Board of Directors of the Company to the Company Stockholders Company’s stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail or terminate this Agreement pursuant to Section 8.1(e) at least five (5) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the reasons, including Company shall have provided to Parent a summary of the material terms and conditions of any such Superior the Acquisition Proposal and a copy copies of the final form of any all written materials related agreements or a description thereto in reasonable detail of such Intervening Eventaccordance with Section 5.3(d), as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”2) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available given Parent the five (5) business days after the Determination Notice to discuss propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and negotiate shall have negotiated in good faith with Parent’s Representatives any proposed modifications Parent with respect to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.such
Appears in 2 contracts
Company Board Recommendation. (a) Subject The Company hereby consents to the terms of Offer and represents that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Unless the Company Board has made a Company Adverse Change in Recommendation in accordance with Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than any action described in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation ChangeAdverse Change in Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract (A) with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal or (B) requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting for payment for such number of Shares validly tendered and not properly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”):
(i) if the Company has received a written bona fide Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.3) from any Person that has not been withdrawn and after consultation with outside legal counsel, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, (x) the Company Board may effect make a Company Board Adverse Change in Recommendation Change provided that or (iy) the Company may terminate this Agreement pursuant to Section 8.1(f) to enter into a Specified Agreement with respect to such Superior Offer, in each such case, if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalto the Company’s stockholders under applicable Legal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change in Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of or terminate this Agreement pursuant to Section 8.1(f) at least four business days prior to making any such Superior Proposal and a copy of the final form of any related agreements Company Adverse Change in Recommendation or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change termination (a “Recommendation Change Determination Notice”) (it being understood that the Recommendation Change Notice which notice shall not in and of itself constitute a Company Board Adverse Change in Recommendation Change for purposes or termination of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.this
Appears in 2 contracts
Samples: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.2(b) and Section 6.3(c)hereof, the Company Board shall (i) recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by the applicable provisions of necessary under Delaware Law, adopt this Agreement in accordance with the applicable provisions of Delaware Law (the “Company Board Recommendation”)) and (ii) include the Company Board Recommendation (with respect to the Offer) in the Schedule 14D-9 and permit Parent to include the Company Board Recommendation in the Offer Documents.
(b) Neither Subject to the terms of this Section 7.2(b), neither the Company Board nor any committee thereof shall (i1) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify or qualify in a any manner adverse to Parent, Parent or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, Merger Sub) the Company Board Recommendation, (iii2) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv3) publicly resolve, agree or publicly propose to take any such actions action (each such foregoing action or failure to act set forth in any of clauses (i1), (2) through or (iv3) being referred to herein as an a “Company Board Recommendation Change”). Notwithstanding the foregoing or anything ; provided, that, making a “stop-look-and listen communication” pursuant to the contrary set forth in this Agreement, if, at any time prior provisions of Rule 14d-9(f) promulgated under the Exchange Act to the Appointment Time, the Company Stockholders shall not be deemed a Company Board receives a Superior Proposal or there occurs an Intervening EventRecommendation Change; provided, further, however, that, notwithstanding the foregoing, the Company Board may effect a Company Board Recommendation Change provided at any time prior to the Appointment Time, if and only if, (A) the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal, (iB) neither the Company nor any of its Representatives shall have breached (other than breaches that are unintentional and not material in effect) the terms of Section 7.1(a), (b) or (c) hereof, (C) the Company Board determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any binding (on Parent) counter-offer or binding (on Parent) offer made by Parent pursuant to clause (E) below), that, in light of such Superior Proposal, that the failure of the Company Board to effect a Company Board Recommendation Change would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal(D) prior to effecting such Company Board Recommendation Change, the Company Board approves or recommends such Superior Proposal; shall have given Parent at least three (ii3) Business Days notice thereof and the opportunity to meet with the Company has notified Board and its outside legal counsel to enable Parent and the Company to discuss in writing good faith a modification of the terms and conditions of this Agreement so that it intends the transactions contemplated hereby may be effected and (E) Parent shall not have made, within such three (3) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements binding (on Parent) counter-offer or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change binding (a “Recommendation Change Notice”on Parent) (it being understood offer that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined determines in good faith (faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel), after considering the terms of such proposal by Parent, that a is at least as favorable to Company Board Recommendation Change is still necessary in light of Stockholders as such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsProposal.
(c) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provision of any other Takeover Law) or otherwise cause such restrictions not to apply, or agree to do any of the foregoing, in each case unless such actions are taken substantially concurrently with a termination of this Agreement.
(d) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) otherwise complying with with, the provisions of Rule 14d-9 promulgated under the Exchange Act, and or (iiiii) making otherwise disclosing any disclosure information to the Company Stockholders (including any factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of the Agreement with respect thereto) if the Company Board determines has determined in good faith (faith, after consultation with its outside legal counsel) , that the failure to make such disclosure do so would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under Delaware Law or a violation of any other applicable Delaware Law; providedprovided that, however, that in no event shall this Section 6.3(c7.2(d) affect the obligations of the Company set forth in under Sections 6.2 7.1 and 6.37.2 hereof; and provided, further, however, that any such disclosure (other than a “stop-look-and listen communication” pursuant to the provisions of Rule 14d-9(f) promulgated under the Exchange Act to the Company Stockholders) will be deemed to be a Company Board Recommendation Change unless the Board such disclosure includes a reaffirmation of Directors publicly reaffirms the Company Board Recommendation within five Business Days Recommendation.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement, which would restrict the Company’s ability to comply with any of such disclosurethe terms of this Section 7.2, with any Person subsequent to the date of this Agreement and until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (ArcSight Inc), Merger Agreement (Hewlett Packard Co)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it any action described in this clause (i) being understood thatreferred to as a “Company Adverse Change Recommendation”) or (ii) approve, only with respect recommend or declare advisable, or propose to a tender offer approve, recommend or exchange offerdeclare advisable, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under allow the Exchange Act) Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, requiring, or which would reasonably expect to cause, the Company to abandon, terminate or fail to consummate the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”), if the Company Board receives has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a material breach of Section 6.3(a)) from any Person that has not been withdrawn and is a Superior Proposal or there occurs an Intervening EventOffer, (x) the Company Board may effect make a Company Board Recommendation Adverse Change provided that Recommendation, or (iy) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalunder applicable Law; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail or terminate this Agreement pursuant to Section 9.1(d)(i) at least five (5) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C)(i) the reasons, including Company shall have provided to Parent a summary of the material terms and conditions of any such Superior Proposal and a copy the Acquisition Proposal, including the identity of the final form Person making such Acquisition Proposal, in accordance with Section 6.3(c)) and provide Parent with copies of any related agreements all documents and written or a description in reasonable detail electronic communications relating to such Acquisition Proposal, (ii) the Company shall have given Parent five (5) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not Acquisition Proposal would cease to constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if Superior Offer, and, to the extent requested by Parent, the Company shall have made its Representatives available to discuss and negotiate negotiated in good faith with Parent’s Parent and its Representatives any with respect to such proposed modifications to revisions or other proposal, if any, and (iii) at the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent end of such Recommendation Change Notice; and five (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (35) Business Day period, the Company Board shall have determined in good faith makes the determination under Section 7.1(b)(A) (after consultation with outside legal counsel), after considering taking into account the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment amendments to this Agreement and the Transactions proposed by Parent, if any). With respect to Section 7.1(b)(C), if there are any material amendments, revisions or changes to the extent required to be disclosed in terms of any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit such Superior Offer, the Company Board shall notify Parent of each such material amendment, revision or change and the applicable five (5) Business Day period shall be extended until at least three (3) Business Days after the time that Parent receives notification from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make each such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurerevision.
Appears in 2 contracts
Samples: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
Company Board Recommendation. (a) Unless the Company Board shall have withheld, withdrawn, amended, qualified or modified the Company Board Recommendation in accordance with this Section 6.2, the Company Board shall (i) make the Company Board Recommendation and (ii) include the Company Board Recommendation (with respect to the Offer) in the Schedule 14D-9 and permit Parent to include the Company Board Recommendation in the Offer Documents.
(b) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.2, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, (ii) withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parentmodify, or publicly propose to refuse to make, withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parentmodify, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood thator Acquisition Transaction, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))) fail to include the Company Board Recommendation in the Schedule 14D-9, or (iv) resolve, agree or publicly propose to take any such of the foregoing actions (each such foregoing any action or failure to act described in the preceding clauses (i), (ii), (iii) through or (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that, none of the following shall be deemed to be a Company Board Recommendation Change: (A) a “stop, look and listen” communication by the Company Board pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act, provided that it also includes an express reaffirmation of the Company Board Recommendation, or (B) the approval or delivery of either (1) a Subsequent Determination Notice or (2) an Intervening Event Notice.
(c) Notwithstanding the foregoing or anything to the contrary limitations set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventSection 6.2, the Company Board may effect a Company Board Recommendation Change provided that with respect to any Acquisition Proposal described in the following clause (i) at any time prior to the Acceptance Time, if (i) the Company Board determines has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal that has not been withdrawn, (ii) neither the Company nor any of its Subsidiaries has breached or violated in any material respect the provisions of Section 6.1 or this Section 6.2 with respect to such Acquisition Proposal or any Person making such Acquisition Proposal (whether or not related to such Acquisition Proposal), (iii) the Company Board has determined in good faith (after consultation with outside legal counselcounsel and after considering any counter-offer or proposal made by Parent pursuant to clause (v) that below), that, in light of the foregoing Superior Proposal, the failure by the Company Board to effect a Company Board Recommendation Change would reasonably be expected to be constitute a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends (iv) prior to effecting such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasonsCompany Board shall have given Parent at least four (4) Business Days prior written notice that the Company intends to take such action (a “Subsequent Determination Notice”), including which notice shall attach such Superior Proposal and state expressly the material identity of the Person making such Superior Proposal and all the terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail and the opportunity to meet with representatives of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made and its Representatives available outside legal counsel to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to a modification of the terms and conditions of this Agreement during so that the three transactions contemplated hereby may be effected and (3v) Parent shall not have made, within four (4) Business Day period following delivery by Days after its receipt of the Company to Parent of such Recommendation Change Company’s Subsequent Determination Notice; and (iv) if Parent shall have delivered to the Company a written , an irrevocable counter-offer or proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, that the Company Board shall have determined in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel), after considering the terms of such proposal by Parent, that a ) is at least as favorable to Company Board Recommendation Change is still necessary in light of Stockholders as such Superior Proposal (it being understood and hereby agreed that every subsequent material revision or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any such Superior Proposal will be deemed to be shall require a new Superior Proposal for purposes of this Section 6.3Subsequent Determination Notice pursuant to the preceding clause (iv) and a new two (2) Business Day “matching” period under the preceding clauses (iv) and (v) following the initial four (4) Business Day “matching” period). The Company shall keep confidential any such counter-offers or proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsReports or applicable Law or stock exchange listing requirement.
(cd) Notwithstanding the limitations set forth in Section 6.2(b) or elsewhere in this Agreement, the Company Board may effect a Company Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event if (i) an Intervening Event has occurred, (ii) the Company Board shall have determined in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, the failure by the Company Board to effect a Company Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to the Company Stockholders under Delaware Law, (iii) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least three (3) Business Days prior written notice thereof (an “Intervening Event Notice”), which notice shall specify in reasonable detail the material facts underlying the Company Board’s determination that an Intervening Event has occurred and the rationale and basis for such Company Board Recommendation Change (it being understood and agreed that any material change to the facts and circumstances relating to such Intervening Event shall require a new written notice by the Company to Parent in compliance with this clause (iii) and a new three (3) Business Day period under clause (iv) below) and the opportunity to meet with the Company’s outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so as to obviate the need to effect a Company Board Recommendation Change on the basis of such Intervening Event so that the transactions contemplated hereby may be effected, and (iv) following the expiration of such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel) and after giving consideration to any offer or proposal from Parent, that, in light of such Intervening Event, the failure by the Company Board to effect a Company Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to the Company Stockholders under Delaware Law.
(e) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (iiprovided that, in each case, any statement(s) making any disclosure to the Company Stockholders that made by the Company Board determines in good faith (after consultation with its outside legal counsel) that pursuant to Rule 14e-2(a), Rule 14d-9 promulgated under the failure to make such disclosure would reasonably Exchange Act shall be expected to be a breach of its fiduciary duties subject to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall terms and conditions of this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Sandisk Corp), Merger Agreement (Fusion-Io, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption advisable, any Acquisition Proposal, (C) after receipt or public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three (3) business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or no position exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within three (other than in a communication made in compliance with 3) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) with respect or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any Acquisition Proposal shall be considered a breach of action described in this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation ChangeAdverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or cause or allow the Company to execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Offer Acceptance Time, and subject to compliance with the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that other provisions of this Section 6.1:
(i) if the Company Board determines in good faith (has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Change Recommendation, or (y) provided that the Company is not in material breach of Section 5.3 with respect to such Acquisition Proposal (and subject to the other provisos contained in Section 8.1(e)), the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Changeor terminating this Agreement pursuant to Section 8.1(e) at least five (5) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation or termination) and, describing if desired by Parent, during such five (5)-business day period shall have negotiated, and caused its Representatives to negotiate, in reasonable detail good faith with respect to any revisions to the reasonsterms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(d), including the material terms and conditions as well as a copy of any acquisition agreement with respect to such Superior Acquisition Proposal and a copy of any financing commitments relating thereto (or, if not provided in writing to the final form Company, a written summary of any related agreements or a description in reasonable detail of such Intervening Eventthe material terms thereof), as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”2) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available given Parent the five (5)-business day period after the Determination Notice to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications propose revisions to the terms and conditions of this Agreement during the three or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered after giving effect to the Company a written proposal capable of being accepted proposals made by the Company to alter the terms or conditions of this Agreement Parent during such three (3) Business Day period, the Company Board shall have determined in good faith (if any, after consultation with outside legal counsel), after considering the terms Board of such proposal by ParentDirectors shall have determined, in good faith, that such Acquisition Proposal is a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement Offer and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; providedLegal Requirements. Issuance of any “stop, however, that in no event shall this Section 6.3(c) affect the obligations look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in Sections 6.2 this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and 6.3; timing of payment of consideration) or other material amendment to any Acquisition Proposal and providedrequire a new Determination Notice, further, except that any such disclosure will the references to five (5) business days shall be deemed to be three (3) business days; and
(ii) other than in connection with a Company Board Recommendation Change unless Superior Offer (which shall be subject to Section 6.1(b)(i)), the Board of Directors publicly reaffirms may make a Company Adverse Change Recommendation in response to an Intervening Event if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least five (5) business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such five (5)-business day period shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Change Recommendation would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the five (5)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation within would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances specified by the Company pursuant to clause (C)(1) above and require a new Determination Notice, except that the references to five Business Days of such disclosure(5) business days shall be deemed to be three (3) business days.
Appears in 2 contracts
Samples: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.3(b), the Board of Directors of the Company shall (i) make the Company Board shall recommend that Recommendation and (ii) include the holders of Company Shares accept Board Recommendation (with respect to the Offer, tender their ) in the Schedule 14D-9 and permit Parent to include the Company Shares to Acquisition Sub pursuant to Board Recommendation in the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”)Documents.
(b) Neither Subject to the terms of this Section 5.3(b), neither the Board of Directors of the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Acquisition Sub, or publicly propose announce its intent to withhold, withdraw, amend or modify in a manner adverse to ParentParent or Acquisition Sub, the determinations set forth in Section 1.3(a) or the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timeforegoing, the Company Board receives a Superior Proposal or there occurs an Intervening Event, of Directors of the Company Board may effect a Company Board Recommendation Change provided that at any time prior to the Acceptance Time if and only if (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to Directors of the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined determines in good faith (after consultation with outside legal counsel), after considering that the terms Board of such proposal by Parent, that Directors of the Company is required to effect a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification the DGCL, and (ii) prior to any Superior Proposal will be deemed effecting such Company Board Recommendation Change, the Board of Directors of the Company shall have given Parent at least five (5) Business Days’ notice that it intends to effect a Company Board Recommendation Change (which notice shall attach a copy of the most recent version of all Contracts (if any) to which the Company is proposed to be a new Superior party relating to any Alternative Acquisition Proposal for purposes that has led to such Company Board Recommendation Change) and the opportunity to meet with the Board of Directors of the Company, its financial advisor and its outside legal counsel, all with the purpose and intent of enabling Parent to propose in its discretion any modification of the terms and conditions of this Section 6.3. The Agreement that Parent believes would persuade the Board of Directors of the Company shall keep confidential any proposals made by Parent not to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any effect such Company SEC ReportsBoard Recommendation Change.
(c) Nothing in this Agreement shall prohibit the Board of Directors of the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 14d-9(f) promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(cthe disclosure of any position contemplated by Rule 14e-2(a) affect or pursuant to Rule 14d-9(f) (other than a statement by the obligations Board of Directors of the Company set forth in Sections 6.2 that it is currently unable to take a position with respect to an offer, and 6.3; and provided, further, that any the Board of Directors will take a position with respect to such disclosure will offer at a future date) shall be deemed to be a Company Board Recommendation Change under this Agreement unless the Board such disclosure is accompanied by and includes an express reaffirmation of Directors publicly reaffirms the Company Board Recommendation. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company that solely describes the Company’s receipt of an Alternative Acquisition Proposal shall not (by itself) constitute a Company Board Recommendation within five Business Days Change if such public statement is accompanied by and includes an express reaffirmation of such disclosurethe Company Board Recommendation, and a “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not (by itself) constitute a Company Board Recommendation Change. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Section 5.3(c) shall be deemed to excuse or relieve the Company from its covenants, agreements and obligations under this Agreement or otherwise limit, impair or affect the remedies available to Parent and Acquisition Sub under this Agreement and applicable Legal Requirements for any breach or violation of this Agreement by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i): (A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (ivC) resolve, agree or publicly propose to take any such actions (each such foregoing any action or failure to act described in clauses this clause (i) through (iv) being referred to herein as an a “Company Board Recommendation ChangeAdverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract (x) with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or (y) requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifSection 6.1(a), at any time prior to accepting for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”):
(i) if the Company has received a written bona fide Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.3) from any Person that has not been withdrawn and after consultation with outside legal counsel, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, (x) the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that or (iy) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer in accordance with Section 8.1(f), in each case, if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalto the Company’s stockholders under applicable Legal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail or terminate this Agreement pursuant to Section 8.1(f) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the reasons, including Company shall have provided to Parent a summary of the material terms and conditions of any such Superior the Acquisition Proposal and a copy of the final form of any related agreements or a description all other material information contemplated to be provided in reasonable detail of such Intervening Eventaccordance with Section 5.3(d), as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”2) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available given Parent the four (4) Business Days after Parent’s receipt of the Determination Notice to discuss propose revisions to the terms of this Agreement or make another proposal and negotiate shall have negotiated in good faith with Parent’s Parent and its Representatives any proposed modifications (to the terms extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.considering
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co., Inc.), Merger Agreement (Immune Design Corp.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares(A) withdraw or withhold (or modify, (ii) withhold, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdwithdraw or withhold (or modify, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (it being understood that, only with respect to C) if a tender offer or exchange offer, taking a neutral position or no position offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (other than in a communication made in compliance with Rule 14d-9(f) promulgated within the meaning of 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days are Parent requests such reaffirmation with respect to such Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal shall be considered a breach of this clause or (iii))B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting for payment such number of Shares validly tendered and not validly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that ”):
(i) if the Company Board determines in good faith has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not result from or arise out of a breach of Section 6.3(a)) from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer, (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cx) Nothing in this Agreement shall prohibit the Company Board from may make a Company Adverse Change Recommendation, or (iy) taking and disclosing to the Company Stockholders may terminate this Agreement pursuant to Section 9.1(d)(i) to enter into a position contemplated by Rule 14e-2(aSpecified Agreement with respect to such Superior Offer, in each case, if and only if: (A) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (faith, after consultation with its the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Law; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(d)(i) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have provided to Parent the information (including a copy of any definitive agreement and related financing agreement) and a summary of the material terms and conditions of the Acquisition Proposal in accordance with Section 6.3(d), (2) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and, to the extent requested by Parent, shall have negotiated in good faith with Parent and its Representatives with respect to such proposed revisions or other proposal, if any, and (3) at the end of such four (4) Business Day period, the Company Board, after consultation with the Company’s financial advisers and outside legal counsel, taking into account the amendments to this Agreement and the Transactions proposed by Parent, if any, shall have determined in good faith that such Acquisition Proposal is a Superior Offer and the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(d)(i) would be inconsistent with the fiduciary duties of the Company Board under appliable Law. If there are any material amendments, revisions or changes to the terms of any such Superior Offer, the Company shall notify Parent of each such material amendment, revision or change and the applicable four (4) Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such revision; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Law; (B) the Company shall have given Parent a Determination Notice at least four (4) Business Days prior to making any such Company Adverse Change Recommendation; and (C) (x) the Company shall have specified the Change in Circumstance in reasonable detail, (y) the Company shall have given Parent four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, and, to the extent requested by Parent, shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (z) after such four (4) Business Day period, the Company Board, after consultation with the Company’s financial advisers and outside legal counsel, taking into account the amendments proposed to this Agreement and the Transactions by Parent, if any, shall have determined in good faith that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board under applicable Law. If there are any material changes to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five shall notify Parent of each such material change and the applicable four (4) Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such disclosurematerial change.
Appears in 2 contracts
Samples: Merger Agreement (Pacira BioSciences, Inc.), Merger Agreement (Flexion Therapeutics Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Purchaser), or publicly propose (other than proposals made at any meeting of the Company Board solely among the participants at such meeting) or adopt any resolution to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentParent or Purchaser), the Company Board RecommendationRecommendation (it being understood that the Company Board Recommendation shall be deemed to have been modified in a manner adverse to Parent or Purchaser if it shall no longer be by the unanimous vote of all directors of the Company, other than those directors that have deemed themselves conflicted), (iiiii) adopt, approve, recommend, endorse resolve in favor of or otherwise declare advisable recommend publicly or to any third party the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or (iviii) resolvecause or permit the Company or any of its Subsidiaries to execute or enter into, agree any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or publicly propose other similar agreement providing for any Acquisition Proposal, other than any confidentiality agreement referred to take in Section 6.1(b) hereof (an “Acquisition Agreement”) (any such actions (each such foregoing action or failure to act described in clauses clause (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that if: (i) an unsolicited, bona fide, written Acquisition Proposal that did not otherwise result from a breach of any provision of this Agreement or any “standstill” or similar agreement or provision under which the Company or any of its Subsidiaries has any rights is made to the Company and is not withdrawn, (ii) the Company provides to Parent written notice at least twenty-four (24) hours (or simultaneous with the Company Board if lesser notice is given to the Company Board) before any meeting of the Company Board at which the Company Board will consider the possibility of withdrawing the Company Board Recommendation or otherwise effecting a Company Board Recommendation Change in connection with such Acquisition Proposal, which notice specifies the reasons for holding such meeting; (iii) at such meeting, the Company Board determines in good faith (after consultation consulting with the Company’s financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (iv) at such meeting, the Company Board determines in good faith, after consulting with its outside legal counsel, that, in light of such Superior Proposal, the failure to withdraw the Company Board Recommendation or otherwise effect a Company Board Recommendation Change would reasonably be expected inconsistent with its fiduciary obligations to be the Company Shareholders and other stakeholders of the Company under applicable Law, (v) the Company promptly notifies Parent, in writing, at least four (4) Business Days before withdrawing the Company Board Recommendation or otherwise making any Company Board Recommendation Change: (A) that it has received a Superior Proposal that did not result from a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, Section 6.1; (B) that the Company Board approves intends to withdraw the Company Board Recommendation or recommends otherwise make an Company Board Recommendation Change and/or take action pursuant to Section 7.1(d)(ii) hereof as a result of such Superior Proposal; and (iiC) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including specifying the material terms and conditions of any such Superior Proposal, including the identity of the Person making such Superior Proposal (and a copy of attaching the final form current version of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”written agreement relating thereto) (it being understood and agreed that any change to the consideration payable in connection with such Superior Proposal or any other material modification thereto shall require a new advance written notice by the Company (except that the Recommendation Change Notice four (4) Business Day period referred to above shall not constitute a Company Board Recommendation Change for purposes of this Agreementbe reduced to two (2) Business Days); ), (iiivi) during such notice period, if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate engages in good faith negotiations with Parent’s Representatives respect to any proposed modifications proposal made by Parent to the terms and conditions of amend this Agreement during in such a manner that obviates the three (3) Business Day period following delivery by need for withdrawing the Company Board Recommendation or otherwise effecting a Company Board Recommendation Change, and (vii) at the time of any Company Board Recommendation Change, the Company Board confirms the determinations referred to Parent of such Recommendation Change Notice; in clauses (iii) and (iv) if Parent shall have delivered above (taking into account any changes to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three proposed by Parent as a result of the negotiations required by clause (3vi) Business Day periodabove or otherwise). The Company shall notify Parent promptly upon any withdrawal of the Company Board Recommendation or other Company Board Recommendation Change.
(c) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that may effect a Company Board Recommendation Change if: (i) there occurs or arises after the date of this Agreement a material event, material development or material change in circumstances that does not relate to any Acquisition Proposal and that was not known by or, if known, the consequences of which (A) were not known by the Company or any of its Subsidiaries on the Agreement Date, and (B) would not have been reasonably expected to have occurred, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to an Acquisition Proposal being referred to as an “Intervening Event”), (ii) the Company provides to Parent written notice at least twenty-four (24) hours (or simultaneous with the Company Board if lesser notice is still necessary given to the Company Board) before any meeting of the Company Board at which the Company Board will consider the possibility of withdrawing the Company Board Recommendation or otherwise effecting a Company Board Recommendation Change in connection with such Intervening Event, which written notice specifies the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iii) at such meeting, the Company Board determines in good faith, after consulting with the Company’s outside legal counsel, that, in light of such Superior Proposal Intervening Event, the failure to withdraw the Company Board Recommendation or Intervening Event in order to comply otherwise effect a Company Board Recommendation Change would be inconsistent with its fiduciary duties obligations to the Company Stockholders Shareholders and other stakeholders of the Company under applicable Delaware Law. Any material amendment , (iv) the Company promptly notifies Parent, in writing, at least four (4) Business Days before making any Company Board Recommendation Change that the Company Board has determined that, in light of such Intervening Event, the failure to withdraw the Company Board Recommendation or modification otherwise effect a Company Board Recommendation Change would be inconsistent with its fiduciary obligations to the Company Shareholders and other stakeholders of the Company under applicable Law and that it intends to make an Company Board Recommendation Change as a result of such Intervening Event, (v) during such notice period, if requested by Parent, the Company engages in good faith negotiations with respect to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals proposal made by Parent to revise amend this Agreement in such a manner that obviates the need for withdrawing the Company Board Recommendation or otherwise effecting a Company Board Recommendation Change, and (vi) at the time of any Company Board Recommendation Change, the Company Board confirms the determination referred to in clause (iii) above (taking into account any changes to the terms of this Agreement, other than in Agreement proposed by Parent as a result of the event of any amendment to this Agreement and to the extent negotiations required to be disclosed in any Company SEC Reportsby clause (v) or otherwise).
(cd) Nothing contained in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or complying with the provisions Item 1012(a) of Rule 14d-9 promulgated Regulation M-A under the Exchange Act, and or (ii) making any disclosure “stop-look-and-listen” communication to the Company Stockholders that Shareholders pursuant to Section 14d-9(f) promulgated under the Company Board determines in good faith Exchange Act (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties or any similar communications to the Company Stockholders under applicable Delaware LawShareholders), in the case of each of clauses (i) and (ii), in which the Company indicates that it has not made a Company Board Recommendation Change; provided, however, that in no event shall this Section 6.3(c6.2(d) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will shall not be deemed to be permit the Company Board to make a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the (it being understood that any such Company Board Recommendation within five Business Days of such disclosureChange shall be permitted only to the extent provided by Section 6.2(b) or Section 6.2(c) hereof).
Appears in 2 contracts
Samples: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.2(b), the Company Board shall (i) recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by and adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “Company Board Recommendation”)) and (ii) include the Company Board Recommendation (with respect to the Offer) in the Schedule 14D-9 and permit Parent to include the Company Board Recommendation in the Offer Documents.
(b) Neither Subject to the terms of this Section 6.2(b), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentParent or Merger Sub, the determinations set forth in Section 1.2(a) or the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Eventforegoing, the Company Board may effect a Company Board Recommendation Change provided that at any time prior to the Appointment Time if and only if (i) the Company Board has received an Acquisition Proposal after the date hereof that constitutes a Superior Proposal, (ii) neither the Company nor any of its Subsidiaries shall have breached or violated (or because of actions taken by any Company Representative, be deemed, pursuant to the terms of Section 6.1, to have breached or violated) the terms of Section 6.1, (iii) the Company Board reasonably determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (v) that below), that, in light of such Superior Proposal, the failure Company Board is required to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification , (iv) prior to any Superior Proposal will be deemed effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days notice that it intends to effect a Company Board Recommendation Change (which notice shall attach a copy of the most recent version of all Contracts to which the Company is proposed to be a party relating to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal) and the opportunity to meet with the Company Board, its financial advisor and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss and negotiate in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby (as may be amended by such discussions) may be effected (it being understood and hereby agreed that a new five-day notice and negotiation period shall be required if the Acquisition Proposal that the Company Board has determined to be a Superior Proposal for purposes is revised in any material respect), (v) Parent shall not have made, within five (5) Business Days after receipt of this Section 6.3. The the Company’s written notice of its intention to effect a Company shall keep confidential Board Recommendation Change, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with Jefferies & Co. or other financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to Company Stockholders as such Superior Proposal, and (vi) such Acquisition Proposal continues to be a Superior Proposal after taking into consideration any proposals counter-offer or proposal made by Parent to revise during the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsforegoing five-Business Day period.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event the disclosure of any position contemplated by Rule 14e-2(a) or pursuant to Rule 14d-9 shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change under this Agreement unless the Board such disclosure is accompanied by and includes an express reaffirmation of Directors publicly reaffirms the Company Board Recommendation. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company that solely describes the Company’s receipt of an Acquisition Proposal shall not (by itself) constitute a Company Board Recommendation within five Business Days Change if such public statement is accompanied by and includes an express reaffirmation of such disclosurethe Company Board Recommendation, and a “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not (by itself) constitute a Company Board Recommendation Change. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Section 6.2(c) shall be deemed to excuse or relieve the Company from its covenants, agreements and obligations under this Agreement or otherwise limit, impair or affect the remedies available to Parent and Merger Sub under this Agreement and applicable Legal Requirements for any breach or violation of this Agreement by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Moldflow Corp), Merger Agreement (Autodesk Inc)
Company Board Recommendation. (a) Subject to the terms of permitted actions contemplated by Section 6.3(b) and Section 6.3(c6.1(f)(iv), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (ii)(1) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend withdraw or modify in a manner adverse to ParentParent or Merger Sub or to the Merger, or publicly propose to withhold, withdraw, amend withdraw or modify in a manner adverse to ParentParent or Merger Sub or the Merger, the Company Board Recommendation, or (iii2) adopt, approve, recommend, endorse publicly propose to approve or otherwise declare advisable the adoption of recommend any Company Acquisition Proposal (it being understood thatany of such actions, only other than a customary “stop, look and listen” communication, a “Company Adverse Recommendation Change”); or (ii) authorize the Company to enter into a binding agreement with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Company Acquisition Proposal shall be considered a breach prior to the termination of this clause Agreement (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation ChangeAlternative Acquisition Agreement”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this AgreementSection 4.8, if, at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventStockholder Approval, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (faith, after consultation with outside legal counsel) , that the failure to do so would be inconsistent with the Company Board’s exercise of its fiduciary duties, the Company Board may (A) effect a Company Board Adverse Recommendation Change would reasonably be expected in response to be a breach of its fiduciary duties Superior Proposal or a Company Intervening Event, or (B) authorize the entry into an Alternative Acquisition Agreement with respect to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, and cause the Company Board approves or recommends to terminate this Agreement in accordance with Section 6.1(f)(iv) and concurrently enter into a binding Alternative Acquisition Agreement with respect to such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that the Company may not make a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 6.1(f)(iv) unless:
(i) the Company gives Parent written notice of its intention to give a Company Adverse Recommendation Change because of a Company Intervening Event at least five business days before effecting the Company Adverse Recommendation Change or gives Parent a Superior Proposal Notice in accordance with Section 6.1(f)(iv);
(ii) if the proposed Company Adverse Recommendation Change is because of a Company Intervening Event, and, if Parent asks the Company to do so, the Company engages in good faith discussions with Parent during the five business day period about possible changes to the terms of this Agreement that would cause the Company Board not to make a Company Adverse Recommendation Change; and
(iii) if the proposed Company Adverse Recommendation Change is in order to terminate this Agreement pursuant to Section 6.1(f)(iv), (A) if Parent asks the Company to do so, the Company shall engage in good faith discussions with Parent during the three NYSE trading day period set forth in Section 6.1(f)(iv) (or such shorter period provided by Section 6.1(f)(v)) about possible changes to the terms of this Agreement that would cause the Company Board to determine that the Superior Proposal that is the subject of the notice under Section 6.1(f)(iv) is no longer a Superior Proposal, and (B) Parent fails to give the Company a Consideration Increase Notice by the time provided in Section 6.1(f)(iv) and (v), or if such notice is delivered, the Company Board in good faith determines after consultation with its financial advisor and consideration of the changes proposed by Parent in the Consideration Increase Notice, that the Superior Proposal continues to be a Superior Proposal.
(c) As used in this Agreement, a “Company Intervening Event” means an event shall or circumstance that was not known to, or reasonably foreseeable by, the Company Board prior to the execution of this Section 6.3(c) affect Agreement (or if known, the obligations consequences of which were not known or reasonably foreseeable), of which the Company Board becomes aware before the Company Stockholder Approval, which event or circumstance or its consequences materially increases the value of the Company set forth in Sections 6.2 and 6.3; its subsidiaries and provided, further, that any such disclosure will be deemed does not relate to be (A) a Company Board Recommendation Change unless Acquisition Proposal, (B) Parent or its subsidiaries (including any Material Adverse Effect as it relates to Parent), (C) actions taken pursuant to this Agreement, (D) changes in the Board price of Directors publicly reaffirms Company Common Stock or Parent Stock (but not the facts or circumstances underlying or giving rise to such change in the price of Company Common Stock), (E) changes in applicable law, (F) changes in GAAP or other applicable accounting rules, (G) changes generally affecting an industry or industries in which the Company Board Recommendation within five Business Days or Parent or their respective subsidiaries conduct business, (H) changes in global or national political conditions (including the outbreak or escalation of such disclosurewar or acts of terrorism), or (I) changes in economic conditions in the United States or regions in which the Company or Parent or their subsidiaries do business.
Appears in 2 contracts
Samples: Merger Agreement (Lennar Corp /New/), Merger Agreement (CalAtlantic Group, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(bSection 5.3(c) and Section 6.3(cSection 5.3(d), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt approve this Agreement and the Plan of Merger (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parentthe transactions contemplated hereby in any material respect, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parentthe transactions contemplated hereby in any material respect, the Company Board Recommendation, (iiiii) adopt, approve, approve or recommend or propose to approve or recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect any action referred to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through and (ivii) being referred to herein as an a “Company Board Recommendation Change”), provided, however, that a “stop, look and listen” communication by the Company Board to the Company Shareholders pursuant to Rule 14d-9(f) of the Exchange Act, or any communication under Israeli law with substantially similar content, shall not be deemed to be a Company Board Recommendation Change, or (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.2(c) entered into in the circumstances referred to in Section 5.2(c)) (an “Alternative Acquisition Agreement”). The Company shall, within twenty four (24) hours following a determination by the Company Board After Consultation that an Acquisition Proposal constitutes a Superior Proposal, notify Parent in writing of such determination.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifSection 5.3, at any time prior to the Appointment Effective Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may (x) effect a Company Board Recommendation Change and/or (y) terminate this Agreement pursuant to Section 9.1(e) in order to enter into a written definitive agreement with respect to a Superior Proposal, in each case, if (i) the Company receives a written, bona fide Acquisition Proposal from a third party, (ii) a material breach by the Company of Section 5.2 or this Section 5.3 has not contributed to the making of such Acquisition Proposal; and (iii) the Company Board concludes in good faith After Consultation that such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board provided that such Superior Proposal may not be subject to any financing condition not set forth in this Agreement and taking into account any standstill obligations to the Company that such third party may have; (iiv) the Company Board determines in good faith (after consultation with outside legal counsel) that After Consultationthat the failure to effect a Company Board Recommendation Change and/or terminate this Agreement pursuant to Section 9.1(e) would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the Company Stockholders directors of a Delaware corporation under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (iiv) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation ChangeChange and/or terminate this Agreement in respect of such Superior Proposal, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change and/or termination (a “Recommendation Change Notice”) ), and shall have contemporaneously provided to Parent a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iiivi) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Business-Day period immediately following the delivery by the Company to Parent of such Recommendation Change Notice; , and (ivvii) if Parent shall have delivered to the Company a written proposal written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Business-Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel)After Consultation, after considering the terms of such proposal offer by Parent, that the failure to effect a Company Board Recommendation Change is and/or terminate this Agreement pursuant to Section 9.1(e) would still necessary in light of such Superior Proposal or Intervening Event in order be expected to comply be inconsistent with its the fiduciary duties of directors of a Delaware corporation under Delaware Law; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or substantially concurrently with such termination the Company Stockholders under applicable Delaware Law. Any material amendment or modification (1) pays the Parent the Termination Fee required by and pursuant to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this AgreementSection 9.3(b)(ii), other than in and (2) immediately following such termination enters into a binding definitive contract for such Superior Proposal. In the event of any amendment material revisions to this Agreement the terms of the Superior Proposal, the Company shall be required to deliver a new Recommendation Change Notice to the Parent and to comply with the extent required requirements of this Section 5.3 with respect to such new Recommendation Change Notice, and the three (3) Business Day-period referred to in clause (vi) shall be disclosed in any Company SEC Reportsdeemed to have re-commenced on the date of such new notice.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act (or any communication under Israeli law with substantially similar content) or a position contemplated by Section 329 of the ICL, or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders Shareholders that the Company Board determines in good faith (after consultation with its outside legal counsel) After Consultation that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosure.this Agreement, including the provisions of Article X.
Appears in 2 contracts
Samples: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.5(b) and Section 6.3(c7.5(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position each of clauses (other than in a communication made in compliance with Rule 14d-9(fx) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)y), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, in response to the Company Board receives receipt of a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that or terminate this Agreement pursuant to Section 9.1(e) if all of the following conditions in clauses (i) through (iv) are met:
(i) A Superior Proposal with respect to the Company has been made and has not been withdrawn or an Intervening Event has occurred;
(ii) The Company shall have (A) delivered to Parent written notice (a “Change of Recommendation Notice”) at least four (4) Business Days prior to effecting such Company Board determines Recommendation Change, which notice shall state expressly (x) that it has received a Superior Proposal, (y) the material terms and conditions of the Superior Proposal and the identity of the Person or group (as defined under Section 13(d) of the Exchange Act) making the Superior Proposal, and (z) that it intends to terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change and the manner in which it intends to do so, and (B) provided to Parent a copy of all written proposals provided by such Person or group in connection with such Superior Proposal (it being understood and agreed that delivery of a Change of Recommendation Notice shall not, by itself, be deemed to be a Company Board Recommendation Change);
(iii) The Company Board has concluded in good faith (by majority vote, after consultation with outside legal counsel) , that the failure to effect a Company Board Recommendation Change would reasonably be expected to be constitute a breach of its fiduciary duties under applicable Law; and
(iv) The Company shall not have breached any of the provisions set forth in Section 6.2 or this Section 7.5 in any material respect with respect to the Company Stockholders under applicable Delaware Law, and in Superior Proposal or Intervening Event that is the case subject matter of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail . After delivering the reasons, including the material terms and conditions Change of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available provide Parent a reasonable opportunity to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications make such adjustments to the terms and conditions of this Agreement during (the three (3) Business Day period following delivery by “Modified Terms”), and negotiate in good faith with respect thereto, as would enable the Company to proceed without making a Company Board Recommendation Change. In the event Parent of such Recommendation Change Notice; proposes Modified Terms and (ivnotwithstanding anything in this Section 7.5(b) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodcontrary, the Company Board shall have determined may not terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change unless and until the Company Board of Directors concludes in good faith (by majority vote, after considering the Modified Terms and consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change is still necessary in light would reasonably be expected to constitute a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be constitute a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article IX.
Appears in 2 contracts
Samples: Merger Agreement (Otsuka Holdings Co., Ltd.), Merger Agreement (Astex Pharmaceuticals, Inc)
Company Board Recommendation. (a) Subject to Section 6.1(b), the terms Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.3(b6.1(b), neither the Board of Directors nor any committee thereof shall (i)(A) and Section 6.3(cwithdraw or withhold (or modify or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify or qualify in a manner adverse to Parent or Purchaser), the Company Board shall Recommendation; or (B) adopt, approve, recommend that the holders of Company Shares accept the Offeror declare advisable, tender their Company Shares or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Sub pursuant Proposal (any action described in this clause (i) being referred to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the as a “Company Board Adverse Change Recommendation”); or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Offer Acceptance Time, and subject to compliance with the other provisions of this Section 6.1:
(i) if any Acquired Corporation has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn, and after consultation with financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (A) the Board of Directors may make a Company Adverse Change Recommendation; or (B) provided that no Acquired Corporation or its Representatives are in material breach of any covenant or obligation set forth in Section 5.3 with respect to such Acquisition Proposal, the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (1) the Board receives of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e) at least four (4) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice and any public disclosure thereof shall not, by itself, constitute a Company Adverse Change Recommendation or termination) and, if desired by Parent, during such four (4)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (3) (a) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(d); and (b) after giving effect to the proposals made by Parent during such period, if any, after consultation with financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or other material amendment to any Acquisition Proposal and require a new Determination Notice, except that the references to four (4) business days shall be deemed to be the later to occur of two (2) business days after the Company delivers such new Determination Notice to Parent and the end of the original four (4)-business day period described above. In the event there occurs an Intervening Eventis a Company Adverse Change Recommendation made in compliance with this Section 6.1(b)(i) with respect to a Superior Offer, the Company shall only enter into an Specified Agreement with respect thereto by terminating this Agreement pursuant to Section 8.1(e); and
(ii) other than in connection with a Superior Offer (which shall be subject to Section 6.1(b)(i)), the Board of Directors may effect make a Company Adverse Change Recommendation in response to an Intervening Event if: (A) the Board Recommendation Change provided of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (iB) the Company Board determines shall have given Parent a Determination Notice (which notice and any public disclosure thereof shall not, by itself, constitute a Company Adverse Change Recommendation) at least four (4) business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such four (4)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Change Recommendation would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances that render a Company Adverse Change Recommendation necessary; and (2) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; provided, however, that in no event shall Legal Requirements. The provisions of this Section 6.3(c6.1(b)(ii) affect shall also apply to any material change to the obligations of facts and circumstances specified by the Company set forth in Sections 6.2 pursuant to clause (C)(1) above and 6.3; and providedrequire a new Determination Notice, further, except that any such disclosure will the references to four (4) business days shall be deemed to be a Company Board Recommendation Change unless the Board later to occur of Directors publicly reaffirms two (2) business days after the Company Board Recommendation within five Business Days delivers such new Determination Notice to Parent and the end of such disclosurethe original four (4)-business day period described above.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Juno Therapeutics, Inc.)
Company Board Recommendation. (a) 10.3.1 Subject to the terms of Section 6.3(b) and Section 6.3(c)Clause 10.3.2, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).not:
(ba) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentBidder), or publicly propose to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentBidder), the Company Board Recommendation, ; or (iiiii) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it any action described in this Clause 10.3.1(a) being understood thatreferred to as a “Company Adverse Change Recommendation”); or
(b) approve, only with respect recommend or declare advisable, or propose to a tender offer approve, recommend or exchange offerdeclare advisable, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under allow the Exchange Act) Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Acquisition (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as other than an “Company Board Recommendation Change”Acceptable Confidentiality Agreement). .
10.3.2 Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to during the Appointment TimeRelevant Period, if the Company or any of its subsidiaries has received a bona fide written Acquisition Proposal, which did not result from a material breach of Clause 10.2 from any person that has not been withdrawn and after consultation with its Financial Advisers and outside legal counsel the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening Event, Proposal,
(a) the Company Board may effect make a Company Board Recommendation Adverse Change provided that Recommendation; and/or
(ib) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure may terminate this Agreement pursuant to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties Clause 12.1.2 and without prejudice to the Company Stockholders under applicable Delaware LawCompensatory Payment, and in the case of a implement such Superior Proposal, the Company Board approves or recommends such Superior Proposal; in both cases, if and only if:
(iic) the Company has notified Parent in writing that it intends shall have given Bidder prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of or terminating this Agreement pursuant to Clause 12.1.2 at least four (4) Business Days prior to making any such Superior Proposal and a copy of the final form of any related agreements Company Adverse Change Recommendation or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change termination (a “Recommendation Change Determination Notice”) (it being understood which notice and any public disclosure thereof that the Recommendation Change Notice is required by Law shall not constitute a Company Board Adverse Change Recommendation Change for purposes of this Agreement); or termination) and Bidder has not elected during such four (iii4) if requested by Parent, the Company shall have made its Representatives available Business Day period to discuss and negotiate in good faith with Parent’s Representatives respect to any proposed modifications revisions to the terms and conditions of this Agreement during the three Acquisition or another proposal to the extent proposed by Bidder so that the terms proposed by Bidder are at least as favourable as the competing Acquisition Proposal (3the Bidder’s revised Acquisition Proposal, being the “Matching Acquisition Proposal”); and
(d) Business Day period following delivery by (A) the Company shall have provided to Parent of Bidder information with respect to such Recommendation Change NoticeAcquisition Proposal in accordance with Clause 10.2.3; and (ivB) if Parent shall have delivered after giving effect to the Company a written proposal capable of being accepted proposals made by the Company to alter the terms or conditions of this Agreement Bidder during such three (3) Business Day period, if any, after consultation with financial advisers or outside legal counsel, the Company Board shall have determined determined, in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parentfaith, that such Acquisition Proposal is a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware LawProposal. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event Issuance of any amendment to this Agreement “stop, look and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated listen” communication by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.this
Appears in 2 contracts
Samples: Implementation Agreement, Implementation Agreement (Nightstar Therapeutics PLC)
Company Board Recommendation. (a) Subject During the Pre-Closing Period, subject to the terms of Section 6.3(b) and Section 6.3(c5.1(b), neither the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or qualify (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Merger Sub), or publicly propose to withhold, withdraw, amend withdraw or qualify (or modify in a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it any action described in this clause (i) being understood thatreferred to as a “Company Adverse Recommendation Change”) or (ii) approve, only recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to a tender offer any Acquisition Proposal, or exchange offerContract that would require, taking a neutral position or no position would reasonably be expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Cut-off Time:
(i) if any Acquired Corporation has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Recommendation Change, or (y) solely if such Acquisition Proposal did not arise out of or result from a material breach of Sections 4.3 or 5.1, the Company may terminate this Agreement pursuant to Section 7.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case under (x) or (y), if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Recommendation Change or terminating this Agreement pursuant to Section 7.1(e) at least three (3) business days prior to making any such Company Adverse Recommendation Change or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Recommendation Change or termination) and, if desired by Parent, during such three (3)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal, to the extent proposed by Parent, so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent, prior to the commencement of such three (3)-business day period, the information with respect to such Acquisition Proposal required to be provided pursuant to Section 4.3(c) and Section 4.3(d), (2) the Company shall have given Parent the three (3)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with the Company’s outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal continues to constitute a Superior Offer and that the failure to make the Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(e) would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication made in compliance with by or on behalf of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct shall not be considered a Company Adverse Recommendation Change and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 5.1 to the extent that any such communication expressly reaffirms the Company Board Recommendation. The provisions of this Section 5.1(b)(i) with respect shall also apply to any financial or other material amendment to any Acquisition Proposal and shall require a new Determination Notice, except that the references to three (3) business days shall be considered a breach of this clause deemed to be two (iii)), or 2) business days; and
(ivii) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act other than in clauses (i) through (iv) being referred to herein as connection with an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment TimeAcquisition Proposal, the Board of Directors may make a Company Board receives a Superior Proposal or there occurs Adverse Recommendation Change in response to an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that Event if and only if: (iA) the Company Board of Directors determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends to effect a Company Board Recommendation Change, Determination Notice describing in reasonable detail the reasons, including the material terms facts and conditions of circumstances relating to such Intervening Event and that render a Company Adverse Recommendation Change necessary at least three (3) business days prior to making any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Adverse Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) and, if requested desired by Parent, during such three (3)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Recommendation Change would no longer be necessary; and (C) (1) the Company shall have made given Parent the three (3)-business day period after its Representatives available receipt of the Determination Notice to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications propose revisions to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written or make another proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, so that a Company Board Adverse Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties would no longer be necessary, and (2) after giving effect to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreementduring such period, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Actif any, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its the Company’s outside legal counsel) , the Board of Directors shall have determined, in good faith, that the failure to make such disclosure the Company Adverse Recommendation Change would reasonably be expected continue to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; provided, however, that in no event shall Legal Requirements. The provisions of this Section 6.3(c5.1(b)(ii) affect shall also apply to any material change to the obligations of facts and circumstances relating to such Intervening Event, which shall require a new Determination Notice, except that the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will references to three (3) business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosuretwo (2) business days.
Appears in 2 contracts
Samples: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares(A) withdraw or withhold (or modify, (ii) withhold, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdwithdraw or withhold (or modify, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (it being understood that, only with respect to C) if a tender offer or exchange offer, taking a neutral position or no position offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (other than in a communication made in compliance with within the meaning of Rule 14d-9(f) promulgated 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal shall be considered a breach of this clause or (iii))B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (ivother than an Acceptable Confidentiality Agreement) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation ChangeSpecified Agreement”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Offer Acceptance Time, if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal was made after the Agreement Date and did not result from or arise out of a breach of Section 6.3(a)) from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Company Board receives shall have determined in good faith that such Acquisition Proposal constitutes a Superior Proposal or there occurs an Intervening EventOffer, the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that if and only if: (iA) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalunder applicable Law; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of or terminate this Agreement pursuant to Section 9.1(d)(i) at least three (3) Business Days prior to making any such Superior Proposal and a copy of the final form of any related agreements Company Adverse Change Recommendation or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change termination (a “Recommendation Change Superior Offer Determination Notice”) (it being understood that the Recommendation Change Notice which notice shall not constitute a Company Board Recommendation Adverse Change for purposes of this AgreementRecommendation); and (iiiC) if requested by Parent, (1) the Company shall have made its Representatives available provided to discuss Parent the information (including a copy of any definitive agreement and negotiate in good faith related financing agreement) with Parent’s Representatives any proposed modifications respect to the terms Acquisition Proposal and conditions of this Agreement during all other information and materials to be provided in accordance with Section 6.3(d), (2) the Company shall have given Parent the three (3) Business Day period following delivery by Days after the Company Superior Offer Determination Notice to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered propose revisions to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer (to the extent Parent desires to do so), and, to the extent requested by Parent, shall have negotiated in good faith with Parent and its Representatives with respect to such proposed revisions or other proposal, if any, and (3) at the end of such three (3) Business Day period, the Company Board Board, after consultation with the Company’s financial advisers and outside legal counsel, taking into account the amendments to this Agreement and the Transactions proposed by Parent, if any, shall have determined in good faith (after consultation that such Acquisition Proposal is a Superior Offer and makes the determination under Section 7.1(b)(y)(A) with outside legal counsel)respect to such Superior Offer. If there are any material amendments, after considering revisions or changes to the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of any such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to Offer, the Company Stockholders under shall notify Parent of each such material amendment, revision or change and the applicable Delaware Law. Any material amendment or modification to any Superior Proposal will three (3) Business Day period shall be deemed to be a new Superior Proposal for purposes extended until at least two (2) Business Days after the time that Parent receives notification from the Company of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportseach such revision.
(c) Nothing Notwithstanding anything to the contrary contained in this Agreement shall prohibit Agreement, at any time prior to the Offer Acceptance Time, the Company Board from may, at any time before the Offer Acceptance Time, make a Company Adverse Change Recommendation in response to an Intervening Event, but only if: (iA) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines has determined in good faith (faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (B) the Company shall have first provided prior written notice to Parent of at least three (3) Business Days that the Company is prepared to make a Company Adverse Change Recommendation in response to such Intervening Event (an “Intervening Event Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation), which notice shall specify in reasonable detail the Intervening Event that renders a Company Adverse Change Recommendation; (C) during the three (3) Business Days, the Company has negotiated with Parent in good faith (if requested by Parent) to enable Parent to propose revisions to the terms of this Agreement so that the failure to make such disclosure Company Adverse Change Recommendation would reasonably no longer be expected to be a breach of its inconsistent with the Company Board’s fiduciary duties obligations to the Company Stockholders Company’s stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(cand (D) affect following the obligations end of the Company set forth in Sections 6.2 three (3) Business Days (it being understood and 6.3; and provided, further, agreed that any material change to the conditions constituting such disclosure will be deemed Intervening Event shall require an additional notice to be Parent and a Company Board Recommendation Change unless new two (2) Business Day period), and after considering such negotiations and any revisions to the Board terms of Directors publicly reaffirms this Agreement that have been agreed to in writing by Parent, the Company Board has determined that, after consultation with its outside legal counsel, the failure to make such Company Adverse Change Recommendation within five Business Days of such disclosurewould continue to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.3(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, Parent or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, Merger Sub the Company Board Recommendation, (ii) publicly approve or recommend an Acquisition Proposal, (iii) adoptfail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company Stockholders, approve, recommend, endorse or otherwise declare advisable the adoption of (iv) if any Acquisition Proposal is structured as a tender offer or exchange offer for the outstanding Shares and is commenced pursuant to Rule 14d-2 under the Exchange Act (it being understood thatother than by Parent or an Affiliate of Parent), only with respect fail to a recommend, within ten (10) Business Days after such commencement, against acceptance by the Company Stockholders of such tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fv) promulgated under publicly propose to do any of the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach foregoing (each of this clause clauses (i), (ii), (iii)), or (iv) resolveand (v), agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that, notwithstanding anything herein to the contrary, a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, any action contemplated by Section 5.3(c)(i) or any substantially similar communication to either of the foregoing, shall not be deemed to be a Company Board Recommendation Change or otherwise be prohibited under the terms of this Agreement, provided that any such disclosure by the Company shall state that the Company Board Recommendation continues to be in effect unless, prior to the time of such public disclosure, a Company Board Recommendation Change has been made in compliance with this Section 5.3.
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to receipt of the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventStockholder Approval, the Company Board may (i) in response to (x) the receipt of a bona fide, written Acquisition Proposal received after the date hereof that did not result from a breach in any material respect of Section 5.2, or (y) the occurrence of an Intervening Event, effect a Company Board Recommendation Change Change, or (ii) in response to a bona fide, written Acquisition Proposal received after the date hereof that did not result from a breach in any material respect of Section 5.2, enter into a definitive agreement implementing such applicable Acquisition Proposal and terminate this Agreement pursuant to Section 8.1(c)(ii), provided that (iA) the Company Board (determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal or, in the failure case of an Intervening Event, that an Intervening Event has occurred, (C) the Company provides written notice to effect Parent at least three (3) Business Days prior to effecting a Company Board Recommendation Change would reasonably be expected or terminating this Agreement pursuant to be a breach Section 8.1(c)(ii) of its fiduciary duties intent to take such action, specifying the Company Stockholders under applicable Delaware Lawreasons therefor (a “Change of Recommendation Notice”), and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (iiD) the Company has notified Parent in writing that it intends prior to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for effecting such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of or terminating this AgreementAgreement pursuant to Section 8.1(c)(ii); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives to, be reasonably available to discuss and negotiate with Parent in good faith with Parent’s Representatives any proposed modifications (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement during as would obviate the three (3) Business Day period following delivery by the basis for a Company to Parent of such Board Recommendation Change Notice; and (iv) if Parent shall have delivered to or the Company a written proposal capable of being accepted by the Company to alter the terms or conditions termination of this Agreement during pursuant to Section 8.1(c)(ii), and (E) no earlier than the end of such three (3) Business Day period, the Company Board shall have determined determines in good faith (after consultation with its financial advisor(s) and outside legal counsel), after considering any amendments to the terms and conditions of such proposal this Agreement proposed by Parent in a binding written offer irrevocably made by Parent, that a Company Board Recommendation Change is still necessary in light of the failure to take such Superior Proposal or Intervening Event in order action would be reasonably likely to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware LawLaw (and, in the case of receipt of such Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal). Any material amendment or modification to any Following delivery of a Change of Recommendation Notice in the case of (x) the receipt of a Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this AgreementProposal, other than in the event of any amendment change to the financial terms (including any change to the amount or form of consideration payable) or other revision to the terms or conditions of such Acquisition Proposal or (y) the occurrence of an Intervening Event, in the event of any change with respect to such Intervening Event, the Company shall provide a new Change of Recommendation Notice to Parent, and any Company Board Recommendation Change or termination of this Agreement pursuant to Section 8.1(c)(ii) following delivery of such new Change of Recommendation Notice shall again be subject to clause (C) and to clause (D) of the extent required to be disclosed in any Company SEC Reportsimmediately preceding sentence for a period of two (2) Business Days.
(c) Nothing Notwithstanding anything herein to the contrary, nothing in this Agreement shall prohibit the Company or the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably be expected likely to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, provided that any such disclosure will be deemed by the Company shall state that the Company Board Recommendation continues to be in effect unless, prior to the time of such public disclosure, a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurehas been made in compliance with this Section 5.3.
Appears in 2 contracts
Samples: Merger Agreement (Biogen Inc.), Merger Agreement (Reata Pharmaceuticals Inc)
Company Board Recommendation. (a) Subject The Company hereby consents to the terms Offer and represents, as of the date of this Agreement, that the Company Board, at a meeting duly called and held, has unanimously made the Company Board Recommendation. Subject in each case to Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents and, if required by during the applicable provisions of Delaware LawPre-Closing Period, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) (A) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, withdraw (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdfail to make, withdraw, amend withdraw (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board RecommendationRecommendation or (B) approve, (iii) adoptrecommend or declare advisable, or publicly propose to approve, recommend, endorse or otherwise declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (it ii) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described in clause (i) or (ii) being understood thatreferred to as a “Company Adverse Change Recommendation”), only (iii) publicly make any recommendation in connection with respect to a tender offer or exchange offer, taking a neutral position or no position offer (other than in the Offer) other than a communication made in compliance with Rule 14d-9(frecommendation against such offer or (iv) promulgated under approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Exchange ActCompany to execute or enter into any Contract (other than an Acceptable Confidentiality Agreement) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions.
(ivb) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at At any time prior to accepting for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, ”):
(i) if the Company Board receives has received a Superior written Acquisition Proposal or there occurs an Intervening Event, from any Person that has not been withdrawn (A) the Company Board may effect make a Company Board Adverse Change Recommendation Change or (B) provided that such Acquisition Proposal did not arise out of a breach in any material respect of Section 5.3, the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, if and only if: (i1) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, as applicable, that such Acquisition Proposal is a Superior Offer and the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) at least five business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (3) (x) the Company shall have provided to Parent a summary of the material terms and conditions of the Acquisition Proposal in accordance with Section 5.3(d) and provided to Parent the latest draft of any documentation being negotiated in connection with the applicable Acquisition Proposal, (y) the Company shall have given Parent the five business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, and (z) after considering the results of any such negotiations and giving effect to any proposals made in writing by Parent, after consultation with outside legal counsel and financial advisors, as applicable, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1 to the extent that any such communication expressly reaffirms the Company Board Recommendation. The provisions of this Section 6.1(b)(i) shall also apply to any material amendment to any Acquisition Proposal, which shall require a new Determination Notice, except that the references to five business days shall be deemed to be three business days, during which time the Company and its Representatives shall again comply with clause (3) above; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, as applicable, that the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least five business days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail, (2) the Company shall have given Parent the five business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal, and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to do so) with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of any such negotiations and giving effect to any proposals made in writing by Parent, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined determined, in good faith (after consultation with outside legal counsel)faith, after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, furtherwhich shall require a new Determination Notice, except that any such disclosure will the references to five business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms three business days, during which time the Company Board Recommendation within five Business Days of such disclosureand its Representatives shall again comply with clause (3) above.
Appears in 2 contracts
Samples: Merger Agreement (Antares Pharma, Inc.), Merger Agreement (Antares Pharma, Inc.)
Company Board Recommendation. (a) The Company hereby represents that its Board of Directors, at a meeting duly called and held, has unanimously made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c5.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board Recommendation in the Proxy Statement. During the Pre-Closing Period, neither the Board of Directors of the Company nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Merger Sub), or publicly propose to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal or (it C) fail to include the Company Board Recommendation in the Proxy Statement (any action described in this clause (i) being understood thatreferred to as a “Company Adverse Change Recommendation”) or (ii) approve, only with respect recommend or declare advisable, or propose to a tender offer approve, recommend or exchange offerdeclare advisable, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under allow the Exchange Act) Company or any Acquired Corporation to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that Stockholder Approval being obtained:
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 4.3) from any Person that has not been withdrawn and after consultation with outside legal counsel and financial advisors, the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Company’s Board of Directors may make a Company Adverse Change Recommendation, or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, if and only if: (A) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would reasonably constitute a breach of the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(f) at least four (4) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have provided to Parent a summary of the material terms and conditions of the Acquisition Proposal and copies of all material written materials related thereto in accordance with Section 4.3(d), (2) the Company shall have given Parent the four (4) business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and financial advisors, the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(f) would reasonably constitute a breach of fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 5.1. For the avoidance of doubt, the provisions of this Section 5.1(b)(i) shall also apply to any material amendment to any Acquisition Proposal and require a new Determination Notice, except that the references to four (4) business days shall be deemed to be three (3) business days; and
(ii) other than in connection with an Acquisition Proposal, the Company’s Board of Directors may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would reasonably constitute a breach of the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four (4) business days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail, (2) the Company shall have given Parent the four (4) business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, and shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Company’s Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be constitute a breach of its fiduciary duties to of the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations Board of Directors of the Company set forth to the Company’s stockholders under applicable Legal Requirements. For the avoidance of doubt, the provisions of this Section 5.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 Circumstance and 6.3; and providedrequire a new Determination Notice, further, except that any such disclosure will the references to four (4) business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurethree (3) business days.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zeltiq Aesthetics Inc), Merger Agreement (Zeltiq Aesthetics Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.2(b), the Company Board shall (i) recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by approve this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement California Law (the “Company Board Recommendation”)) and (ii) include the Company Board Recommendation in the Proxy Statement.
(b) Neither Subject to the terms of this Section 6.2(b), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Eventforegoing, the Company Board may effect a Company Board Recommendation Change provided that at any time prior to obtaining the Requisite Shareholder Approval, if and only if:
(i) (A) the Company Board has received a bona fide, written Acquisition Proposal that did not result from a breach of Section 6.1 that constitutes a Superior Proposal, (B) neither the Company nor any of its Subsidiaries shall have breached or violated (or be deemed, pursuant to the terms hereof, to have breached or violated) the provisions of Section 6.1 in any material respect, (C) the Company Board determines in good faith (after consultation with outside legal counsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (E) below), that, in light of such Superior Proposal, the failure of the Company Board to effect a Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties to shareholders of the Company under California Law, (D) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days’ notice thereof (which notice shall include the most current version of such definitive agreement and, to the extent not included therein, the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal) and the opportunity to meet with the Company Board and its outside legal counsel during such five (5) Business Day period, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so as to obviate the need for the Company Board to effect a Company Board Recommendation Change, and (E) Parent shall not have made, within five (5) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to shareholders of the Company as such Superior Proposal (it being understood that any change to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice pursuant to clause (D) above and a new five (5) Business Day period pursuant to this clause (D)); or
(ii) (A) an “Intervening Event” as defined below shall have occurred and be continuing, (B) the Company Board determines in good faith (after consultation with outside legal counsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (D) below), that, in light of such Intervening Event, the failure of the Company Board to effect a Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties to shareholders of the Company under California Law, (C) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days’ notice thereof (which notice shall include a written explanation of the Company Board’s basis and rationale for proposing to effect such Company Board Recommendation Change) and the opportunity to meet with the Company Board and its outside legal counsel during such five (5) Business Day period, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so as to obviate the need for the Company Board to effect a Company Board Recommendation Change, and (D) Parent shall not have made, within five (5) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, would obviate the need for the Company Board to effect such Company Board Recommendation Change. For these purposes, an “Intervening Event” means a material fact, event, change, development or set of circumstances occurring or existing after the date of this Agreement with respect to the business, operations, financial condition or results of operations of the Company or any of its Subsidiaries (and not relating in any way to (x) an Acquisition Proposal or (y) any fluctuation in the market price or trading volume of the Shares, in and of itself) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of this Agreement.
(c) Nothing in this Agreement shall prohibit the Company Board from taking and disclosing to shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act that the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change disclosure is still necessary in light of such Superior Proposal or Intervening Event likely required in order to comply with its fiduciary duties to shareholders of the Company Stockholders under applicable Delaware California Law. Any material amendment ; provided that any statement(s) made by the Company Board pursuant to this sentence shall be subject to the terms and conditions of this Agreement, including the provisions of Article VIII (it being acknowledged and agreed that any such disclosure, other than a “stop, look and listen” communication of the type contemplated by Section 14d-9(f) of the Exchange Act or modification any other disclosure made pursuant to Section 6.2(c) that is limited to describing the existence and terms of any Superior Proposal will Acquisition Proposal, shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Company Board of Directors expressly publicly reaffirms the Company Board Recommendation within five Business Days of in such disclosurecommunication).
(d) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the provisions on “control share acquisitions” contained in any Takeover Law or otherwise cause such restrictions not to apply. To the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver or other exemption that may have been heretofore granted to any such Person or any Acquisition Proposal under any such provision.
Appears in 2 contracts
Samples: Merger Agreement (Microchip Technology Inc), Merger Agreement (Supertex Inc)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.6(b) and Section 6.3(c5.6(c), the Company Board shall (i) recommend that the holders of shares of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Common Stock approve this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Washington Law (the “Company Board Recommendation”).
) and (bii) Neither include the Company Board Recommendation in the Proxy Statement/Prospectus. Subject to the terms of this Section 5.6, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything terms of Section 5.6(a), subject to the contrary set forth in provisions of this Agreement, ifSection 5.6(b), at any time prior to receipt of the Appointment Time, the Requisite Company Board receives a Superior Proposal or there occurs an Intervening EventShareholder Approval, the Company Board may effect a Company Board Recommendation Change provided that if:
(i) the Company Board has received a bona fide, written Acquisition Proposal that did not result from a breach of Section 5.1 that constitutes a Superior Proposal;
(ii) the Company received the Acquisition Proposal from a Person that is not in breach of its contractual obligations to the Company or any Subsidiary under a standstill, nondisclosure agreement or other similar Contract;
(iii) neither the Company nor any of its Subsidiaries shall have breached or violated (or be deemed, pursuant to the terms hereof, to have breached or violated) the provisions of Section 5.1;
(iv) the Company Board determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (vi) that below), that, in light of such Superior Proposal, the failure of the Company Board to effect make a Company Board Recommendation Change would reasonably be expected to be constitute a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case shareholders of a Superior Proposal, the Company Board approves or recommends under Washington Law;
(v) prior to effecting such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasonsCompany Board shall have given Parent at least three (3) Business Days notice thereof (which notice shall include the most current version of such definitive agreement and, including to the extent not included therein, the material terms and conditions of any such Superior Proposal and a copy the identity of the final form of any related agreements or a description in reasonable detail of Person making such Intervening Event, as Superior Proposal) and the case may be, for such opportunity to meet with the Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by ParentBoard, the Company shall have made Financial Advisor and its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement outside legal counsel during such three (3) Business Day period, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby (including the Merger) may be effected; and
(vi) Parent shall not have made, within three (3) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, a counter-offer or proposal that the Company Board determines in good faith, after consultation with the Financial Advisor or a financial advisor of nationally recognized standing and outside legal counsel, is at least as favorable to shareholders of the Company as such Superior Proposal (it being understood that any change to the financial terms or any other material term or condition of such Superior Proposal shall have determined require a new notice pursuant to clause (iv) above and a new three (3) Business Day period pursuant to this clause (vi)) (it being further understood that there may be multiple extensions of such three (3) Business Day period).
(c) Notwithstanding the terms of Section 5.6(a), at any time prior to receipt of the Requisite Company Shareholder Approval, the Company Board may effect a Company Board Recommendation Change in response to an Intervening Event if:
(i) the Intervening Event does not involve the receipt of an offer, proposal or inquiry from any third party relating to a transaction of the nature described in the definition of “Acquisition Transaction” (which, for purposes of this clause (i), shall be read without reference to the percentage thresholds set forth in the definition thereof);
(ii) the Company Board determines in good faith (after consultation with outside legal counsel), counsel and after considering the terms in good faith any counter-offer or proposal made by Parent pursuant to clause (iv) below) that, in light of such proposal by ParentIntervening Event, that the failure of the Company Board to make a Company Board Recommendation Change is still necessary in light would reasonably be expected to constitute a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the shareholders of the Company Stockholders under applicable Delaware Washington Law. Any material amendment or ;
(iii) prior to effecting such Company Board Recommendation Change, the Company Board shall have given Parent at least five (5) Business Days’ prior written notice thereof, which notice shall specify in reasonable detail the facts underlying the Company Board’s determination that an Intervening Event has occurred and the rationale and basis for such Company Board Recommendation Change, and the opportunity to meet with the Company Board and its outside legal counsel during such five (5) Business Day period, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby (including the Merger) may be effected; and
(iv) following the expiration of the five (5)-Business Day period after Parent’s receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, the Company Board determines in good faith, after consultation with outside legal counsel, and after giving good faith consideration to any Superior Proposal will counter-offer or proposal from Parent that, in light of such Intervening Event, the failure of the Company Board to make a Company Board Recommendation Change would reasonably be deemed expected to constitute a breach of its fiduciary duties to the shareholders of the Company under Washington Law (it being understood that any material change to the facts, events, developments or set of circumstances of the Intervening Event shall require a new notice pursuant to clause (ii) above and a new five (5) Business Day period pursuant to this clause (iii)) (it being further understood that there may be multiple extensions of such five (5) Business Day period).
(d) The Company shall ensure that any Company Board Recommendation Change: (A) does not change or otherwise affect the approval of this Agreement by the Company Board or any other approval of the Company Board; and (B) does not have the effect of causing any Takeover Law (including Section 23B.19 of the WBCA) to be a new Superior Proposal for purposes applicable to this Agreement, the Voting Agreements, the Merger or any of this Section 6.3the other transactions contemplated hereby (including the Merger). The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent extend required to be disclosed in any Company SEC Reports.
(ce) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(cany statement(s) affect the obligations of made by the Company set forth in Sections 6.2 Board pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act shall be subject to the terms and 6.3conditions of this Agreement, including the provisions of Article VII; and provided, provided further, that any such disclosure will statements (other than a “stop, look and listen communication” of the type contemplated by Rule 14d-9(f) under the Exchange Act, and within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless the Company Board of Directors expressly publicly reaffirms the Company Board Recommendation within five Business Days of in connection with such disclosurestatement.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Market Leader, Inc.)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)5.3, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, Stockholders adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Subject to Section 5.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal or (iii) adoptfail to include the Company Board Recommendation in the Proxy Statement (each of clauses (i), approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, obtaining the Company Board receives a Superior Proposal or there occurs an Intervening EventStockholder Approval, the Company Board may (i) in response to the receipt of a written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2 or the occurrence of an Intervening Event, effect a Company Board Recommendation Change or, (ii) in response to the receipt of a written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2, enter into a definitive agreement with respect to such applicable Acquisition Proposal and terminate this Agreement pursuant to Section 8.1(c)(ii); provided that the Company and Company Board may only take an action described in clause (i) or clause (ii) of this Section 5.3(c) if (A) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company provides written notice to Parent at least four (4) Business Days prior to effecting a Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(c)(ii) of its intent to take such action, specifying the reasons therefor, including, in the case of receipt of an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (including a copy of all definitive agreements in respect thereof and any other relevant proposed transaction documentation (including any financing commitments)) (a “Change of Recommendation/Termination Notice”), (D) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(c)(ii), the Company negotiates, and causes its Representatives to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) during such four (4) Business Day period to make such adjustments in the terms and conditions of this Agreement as would reasonably obviate the basis for a Company Board Recommendation Change or the termination of this Agreement pursuant to Section 8.1(c)(ii) and (E) no earlier than the end of such four (4) Business Day period, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel), after considering any proposed amendments to the terms and conditions of this Agreement proposed by Parent during such four (4) Business Day period, that the failure to take such action would be expected to be a breach of inconsistent with its fiduciary duties to under applicable Law (and, in the case of receipt of such Acquisition Proposal, that such Acquisition Proposal is a binding written offer capable of acceptance by the Company Stockholders under applicable Delaware Law, and continues to constitute a Superior Proposal). Following delivery of a Change of Recommendation/Termination Notice in the case of a Superior Proposal, in the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions event of any such Superior Proposal and a copy of change to the final financial terms (including any change to the amount or form of any related agreements consideration payable) or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available other material revision to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodAcquisition Proposal, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms provide a new Change of such proposal by Recommendation/Termination Notice to Parent, that a and any Company Board Recommendation Change is still necessary in light or termination of this Agreement pursuant to Section 8.1(c)(ii) following delivery of such Superior Proposal or Intervening Event in order new Change of Recommendation/Termination Notice shall again be subject to comply with its fiduciary duties clauses (C) through (E) of the immediately preceding sentence, except that references to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will four (4) Business Days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c5.3(d) affect the obligations of shall not permit the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed Board to be make a Company Board Recommendation Change unless except to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureextent permitted by Section 5.3(c).
Appears in 2 contracts
Samples: Merger Agreement (Ambrx Biopharma, Inc.), Merger Agreement (Ambrx Biopharma, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parent, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable recommend, or publicly propose to approve, endorse or recommend, a Company Acquisition Proposal, (iii) fail to include the adoption of any Acquisition Proposal Company Board Recommendation in the Joint Proxy Statement/Prospectus, (it being understood that, only with respect to iv) if a tender offer or exchange offeroffer that constitutes a Company Acquisition Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company Stockholders (including, for these purposes, by disclosing that it is taking a neutral position or no position (other than in with respect to the acceptance of such tender offer or exchange offer by the Company Stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided that a customary “stop, look and listen” communication made in compliance with by the Company Board pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct or a statement that the Company Board has received and is currently evaluating such Company Acquisition Proposal shall not be prohibited or be deemed to be a Company Board Recommendation Change) within ten (10) Business Days after the commencement thereof or such fewer number of days as remain prior to the Company Stockholder Meeting, or (v) fail to publicly reaffirm the Company Board Recommendation following any Company Acquisition Proposal having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided that Parent may not make such request more than one time with respect to any Company Acquisition Proposal unless there shall be considered a breach have been an additional public announcement by the Company with respect to such Company Acquisition Proposal (each of this clause clauses (i), (ii), (iii)), or (iv) resolveand (v), agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Company Stockholder Approval, (1) in connection with a Company Intervening Event or (2) if the Company Board receives a Company Acquisition Proposal that constitutes a Superior Proposal or there occurs an Intervening EventProposal, the Company Board may (x) in the case of clause (1) effect a Company Board Recommendation Change provided that or (y) in the case of clause (2), effect a Company Board Recommendation Change and authorize the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Superior Proposal, in each case, if and only if, prior to effecting such Company Board Recommendation Change and/or authorizing the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Superior Proposal:
(i) the Company Board determines in good faith (faith, after consultation with its outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of inconsistent with its fiduciary duties to under Massachusetts Law;
(ii) the Company Stockholders under applicable Delaware Lawshall have notified Parent in writing at least five (5) Business Days before taking such action of its intention to do so, and shall have specified the reasons therefor, including (A) if such notice is made in connection with a Company Intervening Event, a reasonable description of the case of Company Intervening Event and (B) if such notice is made in connection with a Superior Proposal, the Company Board approves or recommends terms and conditions of, and the identity of the Person making such Superior Proposal; , and contemporaneously with such notice furnished a copy (iiif any) of the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any proposed agreement under which such Superior Proposal is proposed to be consummated and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Eventother material transaction documents, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) including any financing commitment letters (it being understood and agreed that, with respect to any amendment to the financial terms or other material terms of such Superior Proposal, the Company shall have provided Parent a new written notice and a new additional period of three (3) Business Days in respect of each such amendment); it being agreed that any of the Recommendation Change Notice foregoing notice and any amendment to update such notice and the determination to deliver such notice, or update or amend public disclosure with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); ;
(iii) during such five (5) Business Day period or, if applicable, such additional three (3) Business Day period(s), prior to its effecting a Company Board Recommendation Change or terminating this Agreement, if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives in good faith regarding any proposed modifications revisions to the terms and conditions of the transactions contemplated by this Agreement during the three (3) Business Day period following delivery proposed by the Company to Parent of such Recommendation Change Notice; and Parent;
(iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company offer to alter modify the terms or and conditions of this Agreement during such five (5) Business Day period or, if applicable, such additional three (3) Business Day periodperiod(s), the Company Board Board, after expiration of the applicable period and after taking into consideration the adjusted terms and conditions of this Agreement as proposed by Parent, shall have determined in good faith (after consultation with its outside legal counsel)counsel and financial advisor) that (A) in the case of a Superior Proposal, after considering such Superior Proposal continued to be a Superior Proposal, and that the terms of such proposal by Parent, that failure to make a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply terminate this Agreement would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Massachusetts Law or (B) in the case of a Company Intervening Event, the failure to make a Company Board Recommendation Change would be inconsistent with its fiduciary duties under Massachusetts Law. Any material amendment or modification ; and
(v) in the case of the Company terminating this Agreement to any enter into a definitive agreement with respect to a Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Proposal, the Company shall keep confidential any proposals made by Parent to revise have paid, or caused the terms of this Agreementpayment of, other than the Termination Fee in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsaccordance with Section 8.3(b)(iii).
(c) Nothing in this Agreement shall prohibit the Company Board and/or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders that the Company Board and/or any committee thereof determines in good faith (after consultation with from its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Massachusetts Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, provided that any such disclosure will (other than a “stop, look and listen” communication or any substantially similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Board Recommendation Change (including for purposes of Section 8.1(f)) unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days expressly reaffirms its recommendation to the Company Stockholders in favor of the approval of this Agreement and the Merger in such disclosure; provided, further, that this Section 6.5(c) shall not be deemed to permit the Company Board to make a Company Board Recommendation Change or take any of the actions referred to in Section 6.5(b), except, in each case, to the extent permitted by Section 6.5(b).
Appears in 2 contracts
Samples: Merger Agreement (Cohu Inc), Merger Agreement (Xcerra Corp)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, qualify, amend or modify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, qualify, amend or modify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to if a tender offer or exchange offeroffer for Company Common Stock that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent, taking fail to file a neutral position or no position (other than in a communication made in compliance with Schedule 14D-9 pursuant to Rule 14d-9(f) 14e-2 and Rule 14d-9 promulgated under the Exchange Act) Act recommending that the Stockholders reject such Acquisition Proposal and not tender any shares of Company Common Stock into such tender or exchange offer (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the Stockholders) (it being understood that the Company Board may refrain from taking any position with respect to an Acquisition Proposal until the close of business on the tenth (10th) Business Day after the commencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act, including issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act), (iii) fail to publicly reaffirm the Company Board Recommendation within five (5) Business Days after Parent so reasonably requests in writing; (iv) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal made or received after the date hereof; (v) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement constituting or relating to any Acquisition Proposal shall be considered a breach of this clause (iiiother than an Acceptable Confidentiality Agreement as permitted under Section 5.2(c)), ) or (ivvi) resolvefail to include the Company Board Recommendation in the Schedule 14D-9 and, agree or publicly propose to take if applicable, the Meeting Statement (any such of the actions (each such foregoing action or failure to act described in clauses (i) through (ivvi) being referred to herein as an of this Section 5.3(a), a “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives a Superior Proposal (or there occurs any committee thereof) may, in response to (x) an Intervening EventEvent or (y) receipt of a bona fide, unsolicited Acquisition Proposal not arising from any breach of Section 5.2 after the date of this Agreement that the Company Board may (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, in each case, effect a Company Board Recommendation Change provided that pursuant to clauses (i), (ii), (iii) or (vi) of such definition if (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified provided at least twenty-four (24) hours prior written notice to Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”), including a description of the Intervening Event in reasonable detail (in the case of an Intervening Event) or the information described in Section 5.2(d) (in the case of a Superior Proposal) (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by ParentParent after receipt of such notice, the Company shall have made its Representatives available to discuss with Parent’s Representatives and negotiate in good faith with Parent’s Representatives (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following beginning at 5:00 p.m. New York City Time on the day of delivery by the Company to Parent of such Recommendation Change NoticeNotice and ending three (3) Business Days later at 5:00 p.m. New York City Time; and (iv) if Parent shall have delivered provided, however that in the event there is a material change to the Company a written proposal capable facts and circumstances relating to the Intervening Event (in the case of being accepted by the Company an Intervening Event) or material revisions to alter the terms or conditions of the Superior Proposal (in the case of a Superior Proposal), the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply again with the requirements of this Agreement during such Section 5.3, except that references to the three (3) Business Day period in this clause (iii) shall be deemed references to a forty-eight (48) hour period, ; and (iv) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering in good faith the terms of such proposal by Parentany proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change is would still necessary in light of such Superior Proposal or Intervening Event in order reasonably be expected to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cb) Nothing in this Agreement shall prohibit or restrict the Company or the Company Board from (or any committee thereof) from, without limiting the generality of Section 5.3(a), (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and Act or (ii) making any issuing a “stop look and listen” statement pending disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to position thereunder as contemplated by Rule 14d-9(f) under the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureExchange Act.
Appears in 1 contract
Samples: Merger Agreement (KSW Inc)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents, as of the date of this Agreement, that the Company Board, at a meeting duly called and held, has unanimously made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents, and during the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) (A) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, withdraw (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdfail to make, withdraw, amend withdraw (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board RecommendationRecommendation or (B) approve, (iii) adoptrecommend or declare advisable, or publicly propose to approve, recommend, endorse or otherwise declare advisable the adoption of advisable, any Acquisition Proposal Proposal; (it ii) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders; (any action described in clause (i) or (ii) being understood that, only referred to as a “Company Adverse Change Recommendation”); (iii) publicly make any recommendation in connection with respect to a tender offer or exchange offer, taking a neutral position or no position offer (other than in the Offer) other than a communication made in compliance with Rule 14d-9(frecommendation against such offer; or (iv) promulgated under approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Exchange ActCompany to execute or enter into any Contract (other than an Acceptable Confidentiality Agreement) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions.
(ivb) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at At any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach accepting for payment for such number of its fiduciary duties Shares validly tendered and not properly withdrawn pursuant to the Company Stockholders under applicable Delaware Law, and in Offer as satisfies the case of a Superior Proposal, Minimum Condition (the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change NoticeOffer Acceptance Time”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.):
Appears in 1 contract
Samples: Merger Agreement (Synthorx, Inc.)
Company Board Recommendation. (a) Subject to In connection with the terms of Section 6.3(b) REIT Merger and Section 6.3(c)the Company Shareholders’ Meeting, the Company Board shall (i) subject to Section 5.17(c), recommend that to the holders of Company Shares accept the Offer, tender their Company Common Shares to Acquisition Sub pursuant to vote in favor of the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement REIT Merger (the “Company Board Recommendation”)) and use commercially reasonable efforts to obtain the Company Shareholder Approval and (ii) otherwise comply in all material respects with the legal requirements applicable to the Company Shareholders Meeting.
(b) Neither the The Company Board nor any committee thereof shall not, except as expressly permitted by Section 5.17(c):
(i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend qualify, or modify in a manner adverse to Parentany of the Purchaser Parties, modify, or propose publicly propose to withhold, withdraw, amend qualify or modify in a manner adverse to Parentthe Purchaser Parties, modify, the approval or recommendation of the Company Board of the REIT Merger or this Agreement, or
(ii) approve or recommend, or propose to approve or recommend, a Competing Transaction.
(c) Notwithstanding Sections 5.17(a) and 5.17(b), prior to the Company Shareholder Approval, the Company Board Recommendationmay (subject to this Section 5.17(c)) inform the holders of Common Shares that it no longer believes that the REIT Merger (a “Subsequent Determination”) is advisable and no longer recommends approval of the REIT Merger, but only if (iiiA) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal Competing Transaction which is not subsequently withdrawn or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (iB) the Company Board determines in good faith (and on a reasonable basis, after consultation with outside legal counsel) , that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the trustees of the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cd) Nothing contained in this Agreement Section 5.17 shall prohibit the Company Board from (i) taking and disclosing to the holders of Company Stockholders Shares a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act and the rules and regulations thereunder or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) from making any disclosure to the holders of Company Stockholders that Shares if, in the good faith judgment of the Company Board determines in good faith (Board, after consultation with its outside legal counsel) that the failure to make , such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders is advisable under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms provisions described below, Tasty Baking’s board of Section 6.3(b) and Section 6.3(c), the Company Board shall directors agreed to recommend that the holders of Company the Shares accept the Offer, tender their Company Shares to Acquisition Sub Purchaser pursuant to the Offer and, if required by to the applicable provisions of Delaware Lawextent applicable, approve and adopt this the Merger Agreement (and the Merger. This is referred to as the “Company Board Recommendation”).
(b) Neither the ” The Merger Agreement provides that Tasty Baking’s board of directors will not effect a Change of Recommendation or enter into a Company Board nor any committee thereof shall (i) fail Acquisition Agreement except as described below. Xxxxx Xxxxxx’s board of directors may effect a Change of Recommendation or enter into a Company Acquisition Agreement: • at least four business days prior to make the a Change of Recommendation or entering into a Company Board Recommendation Acquisition Agreement, Tasty Baking has provided Parent a written notice of its intention to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only take such action with respect to a tender offer or exchange offerSuperior Proposal, taking which we refer to as a neutral position or no position (other than in “notice of change of recommendation.” The notice of change of recommendation must state that Tasty Baking received a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect Takeover Proposal and that Tasty Baking intends to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives declare a Superior Proposal or there occurs an Intervening Event, the Company Board may effect and make a Change of Recommendation and/or enter into a Company Board Recommendation Change provided that (i) Acquisition Agreement. The notice of change of recommendation must also include a copy of the Company Board determines proposed agreement containing the Superior Proposal and identifying the person making the Superior Proposal; and • during the four business day period after Xxxxxx’s receipt of the notice of change of recommendation, Tasty Baking has, and has caused its representatives to have, negotiated with Parent in good faith (after consultation with outside legal counselif Parent desires to negotiate) that to allow Parent the failure opportunity to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and make adjustments in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this the Merger Agreement during so that the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Takeover Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed ceases to be a new Superior Proposal. The Merger Agreement provides that material revisions to a Takeover Proposal that the board of directors of Tasty Baking has determined to be a Superior Proposal for require Tasty Baking to deliver a new notice of change of recommendation and a new four business day period as described above will begin. For purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent Offer to revise Purchase and the terms of this Merger Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.:
Appears in 1 contract
Company Board Recommendation. (a) Subject Prior to the terms execution and delivery of Section 6.3(b) this Agreement, and Section 6.3(c), as a material inducement to Parent’s willingness to enter into this Agreement the Company Board shall recommend has recommended that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt approve this Agreement and the Plan of Merger (the “Company Board Recommendation”).
(b) Neither Subject to Section 5.2(b) and Section 5.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation; (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal; (iii) adoptenter into any letter of intent, approvememorandum of understanding, recommendagreement in principle, endorse acquisition agreement, merger agreement or otherwise declare advisable similar agreement, or any letter of intent or agreement in principle with respect thereto, providing for the adoption consummation of a transaction contemplated by any Acquisition Proposal or any other Contract or instrument that would require the Company to abandon, terminate or breach any of its obligations hereunder, or that would prevent the Company from consummating the transactions contemplated hereby (it being understood that, only an “Alternative Acquisition Agreement”); (iv) take any other action inconsistent with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Company Board Recommendation, or (ivv) authorize any of, or resolve, commit or agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding of, the foregoing or actions.
(c) Notwithstanding anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Shareholder Approval, the Company Board may effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.1(h) in order to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal complying with the terms of this Section 5.3(c), if (and only if): (I) (A) an unsolicited bona fide written Acquisition Proposal that did not result entirely or partly from a violation of Section 5.2(b) is made to the Company by a non-Affiliate and such Acquisition Proposal is not withdrawn or (B) there has been an Intervening Event; (II) in the case of the Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal; and (III) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make an Adverse Recommendation Change provided or terminate this Agreement pursuant to Section 9.1(h) would be inconsistent with the duties of the Company Board under Israeli Law; provided, however, that none of the Company, the Company Board or any committee thereof shall make an Adverse Recommendation Change, terminate this Agreement pursuant to Section 9.1(h) and/or authorize the Company to enter into any Alternative Acquisition Agreement unless:
(i) the Company Board determines in good faith provides the Parent at least five (after consultation with outside legal counsel5) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach days’ prior written notice of its fiduciary duties intention to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends take such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) action (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute an Adverse Recommendation Change) describing in reasonable detail the reasons for such Adverse Recommendation Change Notice and/or termination, which notice shall not constitute include, as applicable, (A) the information with respect to the Superior Proposal that is specified in Section 5.2(c) as well as a Company Board Recommendation Change for purposes copy of this such Acquisition Proposal and any related Alternative Acquisition Agreement, or (B) the facts and circumstances in reasonable detail of the Intervening Event;
(ii) during the five (5) Business Days following such written notice described in the foregoing clause (i); (iii) if requested by Parent, the Company shall have made Board and its Representatives available to discuss and negotiate have negotiated in good faith with Parent’s Representatives the Parent (to the extent the Parent desires to negotiate) regarding any proposed modifications revisions to the terms and conditions of this Agreement during that may, at the three Parent’s sole discretion, be proposed by the Parent in response to such Superior Proposal or the Intervening Event, as applicable; and
(3iii) at the end of the five (5) Business Day period following delivery by described in the Company to Parent of such Recommendation Change Notice; and foregoing clause (ivi) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined concludes in good faith (faith, after consultation with the Company’s outside legal counsel), after considering counsel and financial advisors (and taking into account any adjustment or modification of the terms of such proposal this Agreement proposed and irrevocably committed to in writing by Parentthe Parent and capable of acceptance by the Company), that that, as applicable (A) the Acquisition Proposal continues to be a Company Board Recommendation Change is still necessary in light of such Superior Proposal or (B) the Intervening Event continues to warrant the Adverse Recommendation Change and, in order each case, that the failure to comply make such Adverse Recommendation Change would be inconsistent with its fiduciary the duties owed by the Company Board to the Company Stockholders under applicable Delaware Israeli Law. .
(iv) the Company shall not terminate this Agreement pursuant to Section 9.1(h), and any purported termination pursuant to Section 9.1(h)shall be void and of no force or effect, unless in advance of or substantially concurrently with such termination the Company (1) pays the Parent the fee required by and pursuant to the terms of Section 9.3(b)(ii) and (2) immediately following such termination enters into a binding Alternative Acquisition Agreement for such Superior Proposal.
(v) Any material amendment or modification to the conditionality, price or form of consideration of any Superior Proposal will be deemed to be a new Superior Acquisition Proposal for purposes of this Section 6.3. The 5.3 and the Company shall keep confidential promptly (but in any proposals made by event within 24 hours of occurrence) notify the Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement such new Acquisition Proposal and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement Parties shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying comply with the provisions of Rule 14d-9 promulgated under the Exchange Actthis Section 5.3(c) with respect thereto
(vi) (x) whether or not there is an Adverse Recommendation Change, and (ii) making any disclosure to the Company Stockholders that unless this Agreement has been terminated in accordance with Section 9.1(h), the Company Board determines in good faith (after consultation with its outside legal counsel) that shall submit this Agreement and the failure to make such disclosure would reasonably be expected to be a breach Plan of its fiduciary duties to Merger for approval by the Company’s shareholders at the Company Stockholders under applicable Delaware Law; Shareholders’ Meeting (provided, howeverhowever that, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and providedfor so long as there is an Adverse Recommendation Change, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board shall not be required in such case to solicit proxies in favor of the approval of the Agreement and Plan of Merger); and (y) in the event there is an Adverse Recommendation within five Business Days of such disclosureChange made in compliance with this Section 5.3(c), with respect to a Superior Proposal, the Company shall only enter into an Alternative Acquisition Agreement with respect thereto by terminating this Agreement.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.3(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
(b) Neither the Company Board nor Notwithstanding Section 5.3(a), at any committee thereof shall (i) fail to make the Company Board Recommendation time prior to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentRequisite Stockholder Approval, the Company Board Recommendationmay, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect in response to a tender offer or exchange offerSuperior Proposal, taking make a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect Change of Recommendation and terminate this Agreement pursuant to any Acquisition Proposal shall be considered a breach of this clause (iii)Section 9.1(g), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act if and only if all of the following conditions in clauses (i) through (ivv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that are met:
(i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in In the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal has not been withdrawn and continues to be a Superior Proposal; ;
(ii) the Company shall have delivered to Parent written notice at least three (3) Business Days prior to publicly effecting such Change of Recommendation in response to a Superior Proposal of its intention to terminate this Agreement in response to a Superior Proposal which shall state expressly (A) that the Company has notified Parent in writing that it intends to effect received a Company Board Recommendation ChangeSuperior Proposal, describing in reasonable detail (B) the reasons, including identity of the Person making the Superior Proposal and the material terms and conditions of any such the Superior Proposal and contemporaneously providing a copy of the final form of any related relevant proposed transaction agreements or a description in reasonable detail of with the Person making such Intervening EventSuperior Proposal, as the case may be, for such Company Board Recommendation Change and (a “Recommendation Change Notice”C) (it being understood that the Company intends to effect a Change of Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); and the manner in which it intends to do so;
(iii) if requested by Parent, the Company shall have made caused its Representatives available to discuss financial and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement legal advisors to, during such three (3) Business Day notice period, the Company Board shall have determined negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board to not effect a Change of Recommendation or to conclude that such Superior Proposal has ceased to constitute a Superior Proposal, as the case may be;
(iv) in the event that during such three (3) Business Day notice period any revisions are made to the Superior Proposal and the Company Board or any committee thereof in its good faith judgment determines such revisions are material (it being agreed that any change in the purchase price in such Superior Proposal shall be deemed a material revision), the Company shall have delivered a new written notice to Parent to comply with the requirements of this Section 5.3 with respect to such new written notice, except that the three (3) Business Day notice period shall be reduced to one (1) calendar day; and
(v) the Company Board has concluded in good faith, after receipt of advice from and consultation with its outside legal counsel), after considering the terms of such proposal by Parent, that the Company Board’s failure to effect a Company Board Change of Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply would be inconsistent with its fiduciary duties obligations to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders that the Company Board determines to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of fulfill its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, provided that any such disclosure will action taken or statement made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of in such disclosurestatement in or connection with such action.
Appears in 1 contract
Samples: Merger Agreement (SoftBrands, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, qualify or modify in a manner adverse to ParentInvestor, or publicly propose to withhold, withdraw, amend amend, qualify or modify in a manner adverse to ParentInvestor, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable recommend an Acquisition Proposal, or (iii) fail to include the adoption Company Board Recommendation in the Proxy Statement (each of any Acquisition Proposal clauses (it being understood thati), only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) under the Exchange Act, or any substantially similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act, shall not be deemed to be a Company Board Recommendation Change.
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Requisite Stockholder Approval, (i) in connection with an Intervening Event or (ii) if the Company Board or the Company receives an Acquisition Proposal that did not arise out of a material breach of Section 5.2, and in connection with which the Company has complied in all material respects with Section 5.2(e) and this Section 6.5(b), and that the Company Board has determined in good faith after advice from its financial advisor(s) and outside legal counsel constitutes a Superior Proposal or there occurs an Intervening EventProposal, the Company Board may (x) effect a Company Board Recommendation Change provided that or (y) in the case of clause (B) above, authorize the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Superior Proposal, in each case, if and only if:
(i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure prior to effect effecting a Company Board Recommendation Change Change, the Company Board and/or any authorized committee thereof determines in good faith, after advice from its outside legal counsel, that failure to do so would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law;
(ii) the Company notifies Investor in writing at least five (5) Business Days before taking such action of its intention to do so, and specifies the reasons therefor, including, (X) if such notice is made in the case of connection with a Superior Proposal, the Company Board approves or recommends terms and conditions of, and the identity of the Person making, such Superior Proposal; , and contemporaneously furnishes a copy (iiif any) of the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any proposed agreement under which such Superior Proposal is proposed to be consummated and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Eventother relevant documents, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) including any financing commitment letters (it being understood and agreed that, with respect to any amendment to the financial terms or any other material term of such Superior Proposal, the Company shall provide Investor a new written notice and a new additional period of three (3) Business Days in respect of each such amendment) and (Y) if such notice is made in connection with an Intervening Event, reasonable detail regarding such Intervening Event; it being agreed that any of the Recommendation Change Notice foregoing notice and any amendment to update such notice and the determination to deliver such notice, or update or amend public disclosure with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); ;
(iii) during such five Business Day period or, if applicable, such additional three Business Day period(s), prior to its effecting a Company Board Recommendation Change, if requested by ParentInvestor, the Company shall have made make its Representatives available to discuss and negotiate with Investor’s Representatives in good faith with Parent’s Representatives regarding any revisions to the terms of the transactions contemplated by this Agreement proposed modifications by Investor;
(iv) if Investor shall have delivered to the Company a written offer to modify the terms and conditions of this Agreement during such five Business Day period, or in the case of an amendment to the Superior Proposal requiring an additional three (3) Business Day period following delivery by pursuant to clause (ii) above, then during such additional three Business Day period (but in any event no later than 5:00 pm, Pacific Time, on the last day of such period), the Company to Parent of such Recommendation Change Notice; Board and/or any authorized committee thereof, after taking into consideration the adjusted terms and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodas proposed by Investor, the Company Board shall have determined continues to determine in good faith (after consultation with advice from its outside legal counselcounsel (and, in connection with an Acquisition Proposal, also from its financial advisor(s))) that such Superior Proposal continues to be a Superior Proposal or that such Intervening Event continues to necessitate a Company Board Recommendation Change, after considering as applicable, and that the terms of such proposal by Parent, that failure to make a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order terminate this Agreement, as applicable, would reasonably be expected to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification ; and
(v) in the case of the Company terminating this Agreement to any enter into a definitive agreement with respect to a Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Proposal, the Company shall keep confidential any proposals made by Parent to revise have paid, or caused the terms of this Agreementpayment of, other than the Termination Fee in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsaccordance with Section 8.3(b)(iii).
(c) Nothing in this Agreement shall prohibit the Company Board and/or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders that the Company Board and/or any authorized committee thereof determines in good faith (after consultation with advice from its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will (other than a “stop, look and listen” communication or any substantially similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Board Recommendation Change (including for purposes of Section 8.1(f)) unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days expressly reaffirms its recommendation to the Company Stockholders in favor of the approval of this Agreement and the Merger in such disclosure.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)5.3, the Company Board shall recommend that the holders Company Stockholders vote in favor of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, and adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Subject to Section 5.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal or (iii) adoptfail to include the Company Board Recommendation in the Proxy Statement (each of clauses (i), approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, obtaining the Company Board receives a Superior Proposal or there occurs an Intervening EventStockholder Approval, the Company Board may (i) in response to the receipt of a written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2 or the occurrence of an Intervening Event, effect a Company Board Recommendation Change and (ii) in response to the receipt of a written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2, cause or permit the Company or any of the Company’s Subsidiaries to enter into a definitive agreement with respect to such Acquisition Proposal and terminate this Agreement pursuant to Section 8.1(c)(ii); provided that the Company and Company Board may only take an action described in clause (i) or clause (ii) of this Section 5.3(c) if (A) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company provides written notice to Parent at least four (4) Business Days prior to effecting a Company Board Recommendation Change would reasonably be expected or terminating this Agreement pursuant to be a breach Section 8.1(c)(ii) of its fiduciary duties intent to take such action, specifying the Company Stockholders under applicable Delaware Lawreasons therefor, and including, in the case of a Superior receipt of an Acquisition Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Acquisition Proposal and (including a copy of the final form all definitive agreements in respect thereof and any other relevant proposed transaction documentation (including any financing commitments)) (a “Change of any related agreements or a description in reasonable detail of such Intervening EventRecommendation/Termination Notice”), as the case may be, for (D) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(c)(ii), the Company negotiates, and causes its Representatives to negotiate, with Parent in good faith (to the extent Parent seeks to negotiate) during such four (4) Business Day period to enable Parent to propose in writing a “Recommendation Change Notice”) (it being understood that binding offer to amend the Recommendation Change Notice shall not constitute terms and conditions of this Agreement as would obviate the basis for a Company Board Recommendation Change for purposes or cause the applicable Acquisition Proposal to no longer constitute a Superior Proposal and (E) no earlier than the end of this Agreement); such four (iii4) if requested by ParentBusiness Day period, the Company shall have made its Representatives available to discuss and negotiate Board determines in good faith (after consultation with Parent’s Representatives its financial advisor(s) and outside legal counsel), after considering any proposed modifications amendments to the terms and conditions of this Agreement proposed in writing in a binding offer by Parent during the three such four (34) Business Day period following period, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (and, in the case of an Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal). Following delivery by of a Change of Recommendation/Termination Notice in the Company to Parent case of such Recommendation Change Notice; and (iv) if Parent shall have delivered an Acquisition Proposal, in the event of any change to the Company a written proposal capable financial terms (including any change to the amount or form of being accepted by the Company consideration payable) or other material revision to alter the terms or conditions of this Agreement during such three (3) Business Day periodAcquisition Proposal, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms provide a new Change of such proposal by Recommendation/Termination Notice to Parent, that a and any Company Board Recommendation Change is still necessary in light or termination of this Agreement pursuant to Section 8.1(c)(ii) following delivery of such Superior Proposal or Intervening Event in order new Change of Recommendation/Termination Notice shall again be subject to comply with its fiduciary duties clauses (C) through (E) of the immediately preceding sentence, except that references to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will four (4) Business Days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and Act or (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c5.3(d) affect the obligations of shall not permit the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed Board to be make a Company Board Recommendation Change unless except to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureextent permitted by Section 5.3(c).
Appears in 1 contract
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents, as of the date of this Agreement, that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b).
(b) Neither , neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iiA) withhold, withdraw, amend withdraw or qualify (or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or qualify (or modify in a manner adverse to ParentParent or Purchaser), the Company Board RecommendationRecommendation or (B) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal, (iiiany action described in this clause (i) adoptbeing referred to as a “Company Adverse Change Recommendation”), or (ii) approve, recommendrecommend or declare advisable, endorse or otherwise propose to approve, recommend or declare advisable advisable, or allow the adoption of Company to execute or enter into any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position Contract (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Actan Acceptable Confidentiality Agreement) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, materially delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions.
(ivb) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at At any time prior to accepting for payment for such number of Shares validly tendered and not properly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”):
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not, directly or indirectly, result from a breach of Section 5.3) from any Person that has not been withdrawn, and after consultation with outside legal counsel, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventProposal, (A) the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that or (iB) the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Proposal, if and only if: (1) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Laws; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) at least four business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice, in and of itself, shall not constitute a Company Adverse Change Recommendation); and (3) (x) the Company shall, no later than concurrently with the delivery of the Determination Notice, have provided to Parent a summary of the material terms and conditions of the Acquisition Proposal and copies of all material documents related thereto in accordance with Section 5.3(d), (y) prior to making any such Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e), the Company shall have given Parent four business days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that such Acquisition Proposal would cease to constitute a Superior Proposal and shall have made itself and its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to negotiate) during such four business days period with respect to such proposed revisions or other proposal, if any, and (z) no earlier than the end of such four business day period, after considering the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined determined, in good faith, that such Acquisition Proposal is a Superior Proposal and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Laws. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1 to the extent that any such communication expressly reaffirms the Company Board Recommendation. The provisions of this Section 6.1(b)(i) shall also apply to any financial or other material amendment to any Acquisition Proposal, which shall require a new Determination Notice, except that the references to four business days shall be deemed to be three business days; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Laws; (B) the Company shall have given Parent a Determination Notice at least three business days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall, no later than concurrently with the delivery of the Determination Notice, have specified the Change in Circumstance in reasonable detail, (2) prior to making any such Company Adverse Change Recommendation, the Company shall have given Parent the three business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal, and shall have made itself and its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to do so) during such three business days with respect to such proposed revisions or make other proposals such that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, if any, and (3) following the end of such three business day period, after considering the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Actshall have determined, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) faith, that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board to the Company’s stockholders under applicable Laws. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, furtherwhich shall require a new Determination Notice, except that any such disclosure will the references to three business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosuretwo business days.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Turning Point Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.3(c), Section 5.3(d) and Section 6.3(c)Article I, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt approve this Agreement and the Merger (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent in any material respect, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentParent in any material respect, the Company Board Recommendation, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal, (iii) adoptfail to include the Company Board Recommendation in the Transaction Report, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose make any public statement inconsistent with the Company Board Recommendation (any action referred to take any such actions (each such in the foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”), or (v) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.2(c) entered into in the circumstances referred to in Section 5.2(c)) (an “Alternative Acquisition Agreement”). The Company shall within twenty-four (24) hours following a determination by the Company Board (after consultation with its outside legal counsel and financial advisors) that an Acquisition Proposal constitutes a Superior Proposal, notify Parent in writing of such determination.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Company Shareholder Approval, the Company Board receives a Superior Proposal (or there occurs an Intervening Event, the Company Board any committee thereof) may (x) effect a Company Board Recommendation Change provided that and/or (y) if it elects to do so in connection with or following a Company Board Recommendation Change, terminate this Agreement pursuant to Section 9.1(e) in order to enter into a written definitive agreement with respect to a Superior Proposal, in each case, if (i) the Company receives a written, bona fide Acquisition Proposal from a third party (provided that the making of such Acquisition Proposal by the third party is not in violation of such third party’s standstill obligations to the Company (if any)), (ii) a breach by the Company of Section 5.2 or this Section 5.3 has not contributed to the making of such Acquisition Proposal; (iii) the Company Board (or any committee thereof) concludes in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board (or any committee thereof); (iv) the Company Board (or any committee thereof) determines in good faith (after consultation with its outside U.S. legal counselcounsel and financial advisors) that the failure to effect a Company Board Recommendation Change and/or terminate this Agreement pursuant to Section 9.1(e) would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the Company Stockholders directors of a Delaware corporation under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (iiv) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation ChangeChange and/or terminate this Agreement in respect of such Superior Proposal, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change and/or termination (a “Recommendation Change Notice”) ), and shall have contemporaneously provided an unredacted copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal and any related documents, including financing documents to which the Company is a party (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iiivi) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Business-Day period immediately following the delivery by the Company to Parent of such Recommendation Change Notice; and (ivvii) if Parent shall have delivered to the Company a written proposal written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Business-Day period, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with its outside U.S. legal counsel), counsel and financial advisors) after considering the terms of such proposal offer by Parent, that the failure to effect a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to and/or terminate this Agreement and pursuant to the extent required to be disclosed in any Company SEC Reports.
(cSection 9.1(e) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would still reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders of directors of a Delaware corporation under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in Sections 6.2 and 6.3; and provided, further, that any advance of or substantially concurrently with such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms termination the Company Board Recommendation within five Business Days (1) pays the Parent the Termination Fee required by and pursuant to the terms of Section 9.3(b)(ii), and (2) immediately following such disclosure.termination enters into a binding definitive contract for such Superior
Appears in 1 contract
Company Board Recommendation. (ai) Subject to the terms of Section 6.3(bclause (ii) and Section 6.3(c)below, the Company Board Information Circular shall recommend include a statement to the effect that the holders Company Board has unanimously recommended that the eligible Company Shareholders vote in favor of the Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement Arrangement Resolution (the “Company Board Recommendation”).
(b) Neither , and neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, qualify, amend or modify in a manner adverse to Parentmodify, or publicly propose or resolve to withhold, withdraw, qualify, amend or modify in a manner adverse to Parentmodify, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation ChangeModification in Recommendation”). .
(ii) Notwithstanding the foregoing or anything to the contrary set forth contained in this AgreementAgreement (including Section 7.2(c)(i)), ifthe Company Board may, at any time prior to the Appointment Timeto, but not after, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventRequired Approval, the Company Board may effect make a Company Board Modification in Recommendation in response to a Company Intervening Event (a “Company Intervening Event Change provided that (iin Recommendation”) if the Company Board determines in good faith (after consultation with faith, based on the advice of its outside legal counsel) , that the failure to effect take such action would be a breach of the fiduciary duties of the Company Board under applicable Law, provided, that: (A) SPAC shall have received written notice from the Company of the Company’s intention to make a Company Intervening Event Change in Recommendation at least five (5) Business Days prior to the taking of such action by the Company (the “Company Intervening Event Notice Period”), which notice shall specify the applicable Company Intervening Event in reasonable detail, (B) during the Company Intervening Event Notice Period and prior to making a Company Intervening Event Change in Recommendation, if requested by SPAC, the Company and its Representatives shall have negotiated in good faith with SPAC and its Representatives regarding any revisions or adjustments proposed by SPAC to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Transactions and not make such Company Intervening Event Change in Recommendation and (C) if SPAC requested negotiations in accordance with clause (B), the Company Board may make a Company Intervening Event Change in Recommendation only if the Company Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that SPAC shall have, prior to the expiration of the five (5) Business Day period, offered in writing in a manner that would form a binding contract if accepted by the Company (and the other applicable parties hereto), continues to determine in good faith, based on the advice of outside counsel, that failure to make a Company Intervening Event Change in Recommendation would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders Shareholders under applicable Delaware Law, . A “Company Intervening Event” shall mean any material and in the case of a Superior Proposal, negative Event that (i) was not known and was not reasonably foreseeable to the Company Board approves as of the date of this Agreement (or recommends such Superior Proposal; the consequences of which (iior the magnitude of which) were not reasonably foreseeable to the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy as of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes date of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered which becomes known to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties prior to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit obtaining the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange ActRequired Approval, and (ii) making does not relate to and excludes (A) any disclosure Business Combination Proposal, Acquisition Proposal or Alternative Transaction (in each case, solely with respect to the Company Stockholders that Company), (B) the Company Board determines Transactions and/or this Agreement (or any actions taken pursuant to this Agreement, including clearance of the Transactions under the Regulatory Approvals or any other applicable Laws and any action in good faith (after consultation with its outside legal counsel) that the failure connection therewith taken pursuant to make such disclosure would reasonably be expected or required to be a breach taken pursuant to Section 7.1), (C) any change in the price or trading volume of its fiduciary duties to SPAC Common Stock, and (D) any Event described in subsections (b), (d), (e) or (g) of the Company Stockholders under applicable Delaware Lawdefinition of “SPAC Material Adverse Effect”; provided, however, that any such Event described in no event shall this Section 6.3(cclause (D) affect may be taken into account in determining whether an Intervening Event has occurred to the extent that it disproportionately affects SPAC relative to other participants in the industries or geographical areas in which SPAC operates. Notwithstanding anything to the contrary contained in this Agreement, during a Company Intervening Event Notice Period, the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms and/or the Company Board Recommendation within five Business Days of to give notice for or to convene a meeting, or to make a recommendation, shall be tolled to the extent reasonably necessary until such disclosuretime as the Company has circulated an update to the Company Information Circular and has made such filings with the Court as required by applicable Law (and the Company shall circulate such update and make such filings as promptly as practicable after the Company Intervening Event Change in Recommendation), and in the event a filing and/or notice for a meeting was made prior to the Company Intervening Event Notice Period, the Company shall be permitted to adjourn such meeting and to amend such filing as necessary in order to provide sufficient time for the Company Shareholders to consider any revised recommendation. To the fullest extent permitted by applicable Law, the Company’s obligations to establish a record date for, duly call, give notice of, convene and hold the Company Shareholders Meeting in accordance with the Interim Order shall not be affected by any Company Modification in Recommendation.
Appears in 1 contract
Samples: Business Combination Agreement (CF Acquisition Corp. VI)
Company Board Recommendation. (a) Subject The Company agrees that, subject to the terms of Section 6.3(b5.6(b) and Section 6.3(c), 5.6(c): (i) the Company Board of Directors shall recommend that the holders Company’s Stockholders vote to approve the Company Stockholder Proposals and the Company shall use its reasonable best efforts to solicit such approval (the recommendation of the Company Shares accept Board of Directors that the Offer, tender their Company Shares Company’s stockholders vote to Acquisition Sub pursuant approve the issuance of the Common Stock contemplated by this Agreement to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (Forza stockholders being referred to as the “Company Board Recommendation”); and (ii) the Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Forza, and no resolution by the Company Board of Directors or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Forza shall be adopted or proposed.
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this AgreementSection 5.6(a), if, if at any time prior to the Appointment Timeapproval of this Agreement by the Company Stockholders, the Company Board receives a Superior bona fide written Acquisition Proposal or there occurs an Intervening Event(which Acquisition Proposal did not arise out of a material breach of Section 4.5) from any Person that has not been withdrawn and, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel and outside financial advisor(s), the Company Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, the Company Board of Directors may withhold, amend, withdraw or modify the Company Board Recommendation in a manner adverse to Forza or, if applicable, recommend such Superior Offer (collectively a “Company Board Adverse Recommendation Change”) if, but only if, the Company’s Board of Directors determines in good faith, based on such matters as it deems relevant following consultation with its outside legal counsel) , that the failure to effect a Company Board Adverse Recommendation Change Change, in light of such Superior Offer, would reasonably be expected to be result in a breach of its the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends of Directors under applicable Legal Requirements; provided, that, before making a Company Board Adverse Recommendation Change, (i) Forza receives written notice from the Company confirming that the Company Board of Directors intends to change its recommendation at least five (5) Business Days in advance of effecting a Company Board Adverse Recommendation Change (the “Company Recommendation Determination Notice”), but such Superior Proposalnotice shall not be deemed to constitute a Company Board Adverse Recommendation Change; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing such notice describes in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy Offer, including the identity of the final form Person making such offer (and attaching the most current and complete version of any related agreements written agreement or a description in reasonable detail of such Intervening Event, as other documents reflecting the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreementmaterial terms relating thereto); (iii) if requested by ParentForza, the Company shall have made its Representatives available to discuss and shall, during such five (5) Business Day period, negotiate with Forza in good faith with Parent’s Representatives any proposed modifications to make such adjustments to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by so that the Company to Parent of such Board Adverse Recommendation Change Notice; is no longer necessary and such Acquisition Proposal no longer constitutes a Superior Offer and (iv) after considering the results of any such negotiations and giving effect to any new proposals made by Forza, if Parent any, and, after consultation with outside legal counsel and outside financial advisor(s), the Company Board of Directors shall have delivered determined, in good faith, that such Acquisition Proposal continues to be a Superior Offer and that the failure to effect a Company Board Adverse Recommendation Change or terminate this Agreement under Section 9.1(k) below in light of such Superior Offer, would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board of Directors under applicable Legal Requirements. The requirements and provisions of this Section 5.6(b) shall also apply in the event of any material change to the terms of any such Acquisition Proposal and each such material change shall require a new Company a written proposal capable Recommendation Determination Notice, except that the references to five (5) Business Days shall be deemed to be four (4) Business Days.
(c) Notwithstanding anything to the contrary contained in Section 5.6(a), if at any time prior to the approval of being accepted this Agreement by the Company Stockholders, the Company Board of Directors may, if an event, fact, development, circumstance or occurrence that affects or would be reasonably likely to alter affect the terms business, assets or conditions operations of the Company that occurs or arises after the date of this Agreement, was neither known nor reasonably foreseeable by the Company Board of Directors as of, or prior to, the date of this Agreement and becomes known by the Company Board of Directors after the date of this Agreement (a “Company Intervening Event”), effect a Company Board Adverse Recommendation Change if it determines in good faith, following consultation with its outside legal counsel, that the failure to effect a Company Board Adverse Recommendation Change in light of such Company Intervening Event would reasonably be expected to materially breach the fiduciary duties of the Company Board of Directors under applicable Legal Requirements; provided, however, that the Company Board of Directors may not effect a Company Board Adverse Recommendation Change due to a Company Intervening Event unless (i) the Company shall have provided prior written notice to Forza (the “Company Intervening Event Recommendation Determination Notice”) at least five (5) Business Days in advance of its intention to effect such Company Board Adverse Recommendation Change, (ii) such notice describes in reasonable detail the facts and reasons for such intention, (iii) if requested by Forza, the Company shall, during such three five (35) Business Day period, negotiate with Forza in good faith to make such adjustments to the terms and conditions of this Agreement so that the Company Board shall have determined Adverse Recommendation Change in good faith connection with the Company Intervening Event is no longer necessary, and (iv) after considering the results of any such negotiations and giving effect to any new proposals made by Forza, if any, and, after consultation with outside legal counsel), after considering the terms Company Board of such proposal by ParentDirectors shall have determined, in good faith, that a the failure to make the Company Board Adverse Recommendation Change is still necessary in light of connection with such Superior Proposal or Company Intervening Event in order would reasonably be expected to comply be inconsistent with its the fiduciary duties of the Company Board of Directors under applicable Legal Requirements. The provisions of this Section 5.6(c) shall also apply to any material change to the Company Stockholders under applicable Delaware Law. Any material amendment or modification facts and circumstances relating to any Superior Proposal will such Company Intervening Event and each such material change shall require a new Company Intervening Event Recommendation Determination Notice, except that the references to five (5) Business Days shall be deemed to be four (4) Business Days. For further clarity, the Company Board of Directors shall not be permitted to effect a new Superior Proposal for purposes of Company Board Adverse Recommendation Change pursuant to this Section 6.3. The Company 5.6(c) with respect to or in connection with any Acquisition Proposal (which shall keep confidential any proposals made be covered by Parent and subject in all respects to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsSection 5.6(b).
(cd) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from (i) taking and disclosing to the stockholders of the Company Stockholders a position as contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act (other than Rule 14d-9(f) under the Exchange Act), and (ii) making any disclosure a “stop, look and listen” communication to the Company Stockholders that stockholders of Forza pursuant to Rule 14d-9(f) under the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware LawExchange Act; provided, however, that in no event shall this Section 6.3(c5.6(d) shall not be deemed to affect the obligations of the whether any such disclosure, other than such a “stop, look and listen” communication, would otherwise be deemed to be a Company set forth in Sections 6.2 and 6.3Board Adverse Recommendation Change; and provided, further, that any such disclosure will disclosures permitted pursuant to this Section 5.7(c) (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Board Adverse Recommendation Change unless the Board of Directors of the Company expressly publicly reaffirms the Company Board Recommendation (x) in such communication or (y) within five three (3) Business Days after being requested in writing to do so by Forza. For clarity, a factually accurate public statement that describes the Company’s receipt of an Acquisition Proposal, that no position has been taken by the Company Board of Directors as to the advisability or desirability of such disclosureAcquisition Proposal and the operation of this Agreement with respect thereto will not be deemed a Company Board Adverse Recommendation Change.
Appears in 1 contract
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b).
(b) Neither , neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iii)(A) withhold, withdraw, amend withdraw or modify in a manner adverse to ParentParent or Purchaser, or publicly propose to withhold, withdraw, amend withdraw or modify in a manner adverse to ParentParent or Purchaser, the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (it being understood that, only C) make any public recommendation or public statement in connection with respect to a tender offer or exchange offer, taking a neutral position or no position (offer other than in a recommendation against such offer or a temporary “stop, look and listen” communication made in compliance with by the Company Board pursuant to Rule 14d-9(f) promulgated under of the Exchange Act, or (D) fail to include the Company Board Recommendation in the Schedule 14D-9 (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to or that could reasonably be expected to lead to any Acquisition Proposal or any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, materially delay or fail to consummate, or that would otherwise be reasonably likely to materially impede, interfere with or be inconsistent with, the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to Offer Acceptance Time:
(i) if the Appointment TimeCompany has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a material breach of Section 5.4) from any Person that has not been withdrawn and, after consultation with outside legal counsel and independent financial advisors, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventProposal, (x) the Company Board may effect make a Company Board Recommendation Adverse Change provided that Recommendation, or (iy) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Proposal, in each case if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, that the failure to do so is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have provided to Parent all information contemplated to be provided in accordance with Section 5.4(d), (2) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that such Acquisition Proposal would cease to constitute a Superior Proposal, and shall have negotiated in good faith with Parent (to the extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and independent financial advisors, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws, and (4) if the Company intends to terminate this Agreement to enter into a Specified Agreement, the Company shall have complied with Section 8.1(f). Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f), in and of itself, shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. For the avoidance of doubt, the provisions of this Section 6.1(b)(i) shall also apply to any material amendment (which shall include any change to the financial terms, including the form, amount and timing of payment of consideration) to any Acquisition Proposal and require a new Determination Notice, except that the references to four (4) Business Days shall be deemed to be three (3) Business Days; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to an Intervening Event, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, that the failure to do so is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws; (B) the Company shall have given Parent a Determination Notice at least four (4) Business Days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Intervening Event in reasonable detail, (2) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that such Intervening Event would no longer necessitate a Company Adverse Change Recommendation, and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to do so) with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel) , the Company Board shall have determined, in good faith, that the failure to effect a make the Company Adverse Change Recommendation in response to such Intervening Event is inconsistent with the fiduciary duties of the Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in Laws. For the case avoidance of a Superior Proposaldoubt, the Company Board approves or recommends such Superior Proposal; (iiprovisions of this Section 6.1(b)(ii) shall also apply to any material change to the Company has notified Parent in writing that it intends facts and circumstances relating to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening EventEvent and require a new Determination Notice, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood except that the Recommendation Change Notice references to four (4) Business Days shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available be deemed to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the be three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsDays.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 1 contract
Samples: Merger Agreement (Viela Bio, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentNewco in any material respect, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentNewco in any material respect, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that a “stop, look and listen” communication by the Company Board or any authorized committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change; and provided further, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifAgreement (including the provisions of Section 6.1), at any time prior to the Appointment Timereceipt of the Requisite Stockholder Approval, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board and/or any authorized committee thereof may effect a Company Board Recommendation Change provided that (i) if the Company Board determines and/or any authorized committee thereof shall have determined in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportslaw.
(cb) Nothing in this Agreement shall prohibit the Company Board or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines or any authorized committee thereof shall have determined to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of comply with its fiduciary duties to the Company Stockholders under applicable Delaware Lawlaw; provided, however, that that, in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and providedeither such case, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days or any authorized committee thereof shall be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article VIII.
Appears in 1 contract
Samples: Merger Agreement (Entrust Inc)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents, as of the Agreement Date, that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.4(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.4(b).
(b) Neither , neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iii)(A) withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parentmodify, the Company Board Recommendation, ; (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal; (C) fail to publicly reaffirm the Company Board Recommendation within ten (10) days after Parent reasonably requests in writing or, if earlier, within two (2) Business Days before the Expiration Date (it being understood that, only with respect that the Company will have no obligation to make such reaffirmation on more than three (3) separate occasions); (D) following the commencement of a tender offer or exchange offeroffer relating to the Shares by a Person unaffiliated with Parent, taking a neutral position fail to publicly affirm the Company Board Recommendation and recommend that the Company’s shareholders reject such tender offer or no position exchange offer within ten (other than in a communication made in compliance with 10) Business Days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f14e-2(a) promulgated under the Exchange ActAct (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time); or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the Company’s shareholders (any action described in this clause (i)(A) through (E) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, requiring, or that would reasonably expect to cause, the Company to abandon, terminate or fail to consummate the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at At any time prior to the Appointment Offer Acceptance Time:
(i) if at any time on or after the Agreement Date and prior to the Offer Acceptance Time the Company has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and, after consultation with outside legal counsel, the Company Board receives (or a committee thereof) has determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, then (x) the Company Board may effect make a Company Board Recommendation Adverse Change provided that Recommendation, or (iy) subject to the Company’s compliance with Section 9.3(b), the Company may terminate this Agreement pursuant to Section 9.1(d)(i) solely if the Company and its Representatives shall have complied in all material respects with the provisions of Section 6.1 and this Section 6.4 with respect to the Superior Offer, but in each case under (x) or (y), if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalto the Company’s shareholders under applicable Law; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect make a Company Board Adverse Change Recommendation Changeor terminate this Agreement pursuant to Section 9.1(d)(i) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation or termination) and, describing if desired by Parent, during such five (5) Business Day period shall have negotiated, and shall have caused its Representatives to negotiate, in reasonable detail good faith with respect to any revisions to the reasonsterms of this Agreement or another proposal, including to the extent proposed by Parent, so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (i) the Company shall have provided, and shall have directed its Representatives to provide, to Parent a summary of the material terms and conditions of any the Acquisition Proposal in accordance with Section 6.3(d), (ii) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Superior Acquisition Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not would cease to constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if Superior Offer, and, to the extent requested by Parent, the Company shall have made its Representatives available to discuss and negotiate negotiated in good faith with Parent’s Parent and its Representatives any with respect to such proposed modifications to revisions or other proposal, if any, and (iii) at the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent end of such Recommendation Change Notice; and five (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (35) Business Day period, the Company Board shall have determined in good faith makes the determination under Section 6.4(b)(i)(A) (after consultation with outside legal counseltaking into account the amendments to this Agreement and the Transactions proposed by Parent, if any). With respect to Section 6.4(b)(i), after considering if there are any material amendments, revisions or changes to the terms of any such proposal by ParentSuperior Offer, the Company shall notify Parent of each such material amendment, revision or change and the applicable four (4)-Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such revision; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Board Adverse Change Recommendation if and only if (A) a Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to Circumstance has occurred; (B) the Company Stockholders under applicable Delaware Law. Any material amendment or modification shall have provided Parent a Determination Notice at least four (4) Business Days prior to making any Superior Proposal will be deemed such Company Adverse Change Recommendation; and (C) (x) the Determination Notice specifies in reasonable detail the facts and circumstances relating to be such Change in Circumstance that render a new Superior Proposal for purposes of this Section 6.3. The Company Adverse Change Recommendation necessary and includes such documents, information and data in the Company’s possession as reasonably relate to such Change in Circumstance, (y) the Company shall keep confidential any proposals made by have given Parent four (4) Business Days after the Determination Notice to revise propose revisions to the terms of this AgreementAgreement or make another proposal so that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, other than in the event of any amendment to this Agreement and and, to the extent required requested by Parent, shall have negotiated in good faith with Parent with respect to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act such proposed revisions or complying with the provisions of Rule 14d-9 promulgated under the Exchange Actother proposal, if any, and (iiz) making any disclosure to at the end of such four (4) Business Day period, the Company Stockholders that the Company Board determines in good faith (Board, after consultation with its the Company’s outside legal counsel) , makes the determination, in good faith, that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board to the Company’s shareholders under applicable Law (after taking into account the amendments proposed to this Agreement and the Transactions by Parent, if any). With respect to this Section 6.4(b)(ii), if there are any material changes to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five shall notify Parent of each such material change and the applicable four (4) Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such disclosurematerial change.
Appears in 1 contract
Company Board Recommendation. (a) Subject to Unless the terms Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, unless the Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) fail to include the Company Board Recommendation in the Schedule 14D-9 or the Merger Proxy Statement or (C) adopt, approve, recommend, endorse recommend or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))advisable, or (iv) resolve, agree or publicly propose to take adopt, approve, recommend or declare advisable, any such actions Acquisition Proposal (each such foregoing any action or failure to act described in clauses this clause (i) through (iv) being referred to herein as an a “Company Board Adverse Recommendation Change”). ; or (ii) adopt, approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal, or that requires, or is reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifSection 6.1(a), at any time prior to the Appointment TimeOffer Acceptance Time or, if Parent has made a Meeting Election, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that Cut-off Time:
(i) if any Acquired Corporation has received a bona fide written Acquisition Proposal that was made or renewed on or after the date of this Agreement and did not result from or arise out of a breach of this Agreement from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, the Board of Directors may make a Company Adverse Recommendation Change and the Company may terminate this Agreement pursuant to Section 8.1(f) to enter into a Specified Agreement with respect to such Superior Offer, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Recommendation Change or terminating this Agreement pursuant to Section 8.1(f) at least five (5) business days prior to making any such Company Adverse Recommendation Change or termination (a “Determination Notice”) and, to the extent desired by Parent, during such five (5)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(d), (2) the Company shall have given Parent the five (5)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to any written proposals and any revised terms made by Parent in writing during such period, if any, after consultation with the Company’s financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and, after consultation with the Company’s outside legal counsel, that the failure to make the Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(f) would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material amendment or modification to any Acquisition Proposal and require a new Determination Notice, except that for purposes of the foregoing the references to five (5) business days shall be deemed to be three (3) business days; and
(ii) other than in connection with an Acquisition Proposal, the Board of Directors may make a Company Adverse Recommendation Change in response to an Intervening Event if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least five (5) business days prior to making any such Company Adverse Recommendation Change and, to the extent desired by Parent, during such five (5)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Recommendation Change would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances underlying the Intervening Event that render a Company Adverse Recommendation Change necessary, (2) the Company shall have given Parent the five (5)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Recommendation Change would no longer be necessary, and (3) after giving effect to the written proposals made by Parent during such period, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make the Company Adverse Recommendation Change in response to such disclosure Intervening Event would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; provided, however, that in no event shall Legal Requirements. The provisions of this Section 6.3(c6.1(b)(ii) affect shall also apply to any material change to the obligations facts and circumstances relating to such Intervening Event and require a new Determination Notice, except that for purposes of such subsequent Determination Notice, the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will references to five (5) business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurethree (3) business days.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Decibel Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shareswithdraw or withhold (or modify, (ii) withhold, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdwithdraw or withhold (or modify, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal or (it being understood that, only with respect to C) if a tender offer or exchange offeroffer for the Company Common Stock that constitutes an Acquisition Proposal is commenced, taking fail to recommend against acceptance of such tender offer or exchange offer within 10 Business Days after the commencement thereof (any action described in this clause (i) being referred to as a neutral position “Company Adverse Change Recommendation”) or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow the Exchange Act) Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iiiother than an Acceptable Confidentiality Agreement)), or .
(ivb) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting for payment such number of Shares validly tendered and not validly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, ”):
(i) if the Company Board receives has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not result from or arise out of a breach of Section 6.3(a)) from any Person that has not been withdrawn and is a Superior Proposal or there occurs an Intervening EventProposal, (x) the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that or (iy) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Proposal, if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s financial advisors or outside legal counsel) , that such Acquisition Proposal constitutes a Superior Proposal and that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalunder applicable Law; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail or terminate this Agreement pursuant to Section 9.1(d)(i) at least five (5) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C)(i) the reasons, including Company shall have provided to Parent all the material terms and conditions of any such Superior the Acquisition Proposal and a copy all other information to be provided in accordance with Section 6.3(c), including the agreements (including financing arrangements) with respect to such Acquisition Proposal, (ii) the Company shall have given Parent the five (5) Business Days after Parent’s receipt of the final form Determination Notice to propose revisions to the terms of any related agreements this Agreement or a description in reasonable detail of make another proposal, so that such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not Acquisition Proposal would cease to constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if Superior Proposal, and, to the extent requested by Parent, the Company shall have made its Representatives available to discuss and negotiate negotiated in good faith with Parent’s Parent and its Representatives any with respect to such proposed modifications to revisions or other proposal, if any, and (iii) at the terms and conditions end of this Agreement during the three such five (35) Business Day period following delivery by after consultation with the Company to Parent of such Recommendation Change Notice; Company’s financial advisors and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodoutside legal counsel, the Company Board shall have determined in good faith (after consultation that such Acquisition Proposal continues to constitute a Superior Proposal and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(d)(i) would continue to be inconsistent with outside legal counsel), after considering the terms fiduciary duties of such proposal by Parent, that a the Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes For the avoidance of doubt, the provisions of this Section 6.3. The Company 7.1(b)(i) shall keep confidential also apply to any proposals made by Parent change to revise any of the financial terms (including the form, amount and timing of this Agreementpayment of consideration) or any other material amendment to any Acquisition Proposal, each of which will require a new Determination Notice (except that the references to five (5) Business Days shall instead be three (3) Business Days); and
(ii) other than in the event of any amendment connection with an Acquisition Proposal (which shall be subject to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit Section 7.1(b)(i)), the Company Board from may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (iA) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Law; (B) the Company shall have given Parent a Determination Notice at least five (5) Business Days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail in the Determination Notice, including the facts and circumstances that render a Company Adverse Change Recommendation necessary in the determination of the Company Board, (2) the Company shall have given Parent the five (5) Business Days after Parent’s receipt of the Determination Notice to propose revisions to the terms of this Agreement or make another proposal, and shall have negotiated in good faith with Parent and its Representatives, to the extent Parent desires to do so, with respect to such proposed revisions or other proposal, if any, and (3) after considering any such revisions or proposals and the results of any such negotiations and giving effect to the revisions or proposals made by Parent, if any, after consultation with its outside legal counsel) , the Company Board shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected continue to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board under applicable Law. For the avoidance of doubt, the provisions of this Section 7.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, further, each of which will require a new Determination Notice (except that any such disclosure will be deemed the references to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five (5) Business Days of such disclosureshall instead be three (3) Business Days).
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.3(a) and Section 6.3(c5.3(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “Company Board Recommendation”)) at the Company Stockholder Meeting.
(ba) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to receipt of the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Stockholder Approval, the Company Board may effect a Company Board Recommendation Change provided that if: (i) the Company shall have received a Superior Proposal that was not solicited in breach of Section 5.2(b); (ii) the Company Board determines shall have determined in good faith (after consultation with outside legal counsel) that the failure to effect a such Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (iiiii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iiiiv) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three five (35) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (ivv) if Parent shall have delivered to the Company a written proposal written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three five (35) Business Day period, the Company Board shall have determined in good faith (after consultation with its financial advisors and outside legal counsel), after considering the terms of such proposal offer by Parent, that a Company Board the Superior Proposal giving rise to such Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed Notice continues to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsProposal.
(cb) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(cany such statement(s) affect the obligations of or disclosures made by the Company set forth in Sections 6.2 Board will be subject to the terms and 6.3conditions of this Agreement, including the provisions of Article IX; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days shall not recommend that the Company Stockholders tender their shares of Company Common Stock in connection with such disclosuretender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) unless such tender or exchange offer constitutes a Superior Proposal and the applicable requirements of Section 5.2 shall have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (infoGROUP Inc.)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.7, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Company’s stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
(b) at the Company Stockholder Meeting. Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood thatrecommend, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take approve, endorse or recommend any such Acquisition Proposal or agreement pursuant to which an Acquisition Transaction would be consummated (any of the actions (each such foregoing action or failure referred to act in the preceding clauses (ix) through and (ivy) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change if it is accompanied by a statement of the Company Board expressly and publicly reaffirming the Company Board Recommendation in connection with such statement or disclosure.
(b) Notwithstanding the foregoing or anything to the contrary set forth in terms of this Agreement, ifSection 6.7, at any time prior to receipt of the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Merger Approval, the Company Board may effect a Company Board Recommendation Change provided (and disclose to the Company Stockholders that the Company Board has effected a Company Board Recommendation Change) if the conditions set forth below have been satisfied prior to effecting such Company Board Recommendation Change:
(i) the Company Board determines shall have received an unsolicited Acquisition Proposal (which has not been withdrawn) in writing after the date hereof;
(ii) none of the Company, any of its Subsidiaries or any of their respective Representatives shall have breached or violated in any material respect the terms of Section 6.1 in connection with such Acquisition Proposal or in connection with any other Acquisition Proposal made or submitted by any Person (or any Affiliate or agent thereof) making such Acquisition Proposal;
(iii) the Company Board shall have determined in good faith (after consultation with its financial advisor and its outside legal counsel) that (A) such Acquisition Proposal constitutes a Superior Proposal and (B) in light of such Superior Proposal, the failure to effect make a Company Board Recommendation Change would is reasonably be expected likely to be a breach of its fiduciary duties to the Company Stockholders Company’s stockholders under applicable Delaware Law;
(iv) the Company Board shall have given Parent at least five (5) Business Days prior written notice (1) of the identity of the Person(s) making such Superior Proposal and all of the material terms and conditions of such Superior Proposal (and if such Superior Proposal is in written form, a copy of such Superior Proposal and all related agreements, commitment letters and other material documents provided or otherwise furnished by the Person(s) making such Superior Proposal in connection therewith) (it being agreed that in the case event that, after commencement of such five (5) Business Day period, there is any material revision to the terms of a Superior Proposal, including any revision in price, the five (5) Business Day period shall be extended to ensure that at least five (5) Business Days remains in such period subsequent to the time the Company notifies Parent of any such material revision), and (2) that the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing Change in reasonable detail the reasons, including the material terms and conditions of any response to such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as opportunity to meet with the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that and the Recommendation Change Notice shall not constitute a Company Board Recommendation Change Company’s financial advisors and outside legal counsel at such times as Parent may reasonably request for purposes the purpose of this Agreement); (iii) if requested by Parent, enabling Parent and the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives this Agreement and the terms and conditions hereof, and any proposed modifications to of the terms and conditions of this Agreement during that Parent may propose in response thereto; and
(v) after the three foregoing five (35) Business Day period following delivery and any extensions thereof and, if requested by Parent, meetings with Parent and its financial advisors and legal counsel during such period, (A) Parent shall not have made a proposal at least as favorable or more favorable to the Company’s stockholders as such Acquisition Proposal and (B) the Company Board shall have determined in good faith (after consultation with its financial advisor its outside legal counsel) that (1) such Acquisition Proposal continues to constitute a Superior Proposal, and (2) in light of such Superior Proposal and after good faith consideration of all proposals by Parent, the failure to effect such Company Board Recommendation Change is reasonably likely to be a breach of its fiduciary duties to the Company’s stockholders under Delaware Law.
(c) Notwithstanding the foregoing terms of this Section 6.7, at any time prior to receipt of the Requisite Merger Approval, the Company Board may effect a Company Board Recommendation Change (and disclose to the Company Stockholders that the Company Board has effected a Company Board Recommendation Change) for a reason unrelated to an Acquisition Proposal (it being understood and agreed that any Company Board Recommendation Change proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with the terms of Section 6.7(b)) if the conditions set forth below have been satisfied prior to effecting such Company Board Recommendation Change:
(i) the Company Board shall have determined in good faith (after consultation with its outside legal counsel) that the failure to make a Company Board Recommendation Change is reasonably likely to be a breach of its fiduciary duties to the Company’s stockholders under Delaware Law;
(ii) the Company Board shall have given Parent at least five (5) Business Days prior written notice that the Company Board intends to effect such Company Board Recommendation Change and the opportunity to meet with the Company Board and the Company’s financial advisors and outside legal counsel at such times as Parent may reasonably request for the purpose of enabling Parent and the Company to Parent of such Recommendation Change Notice; and discuss in good faith (ivA) if Parent shall have delivered to the Company a written proposal capable Board’s basis and rationale for proposing to effect such Company Board Recommendation Change, and/or (B) possible modifications of being accepted by the Company to alter the terms or and conditions of this Agreement during in such three a manner that would obviate the need for the Company Board to effect such Company Board Recommendation Change; and
(3iii) after the foregoing five (5) Business Day period and, if requested by Parent, meetings with Parent and its financial advisors and legal counsel during such period, the Company Board shall have determined in good faith (after consultation with its outside legal counsel), after considering that the terms of failure to effect such proposal by Parent, that a Company Board Recommendation Change is still necessary in light reasonably likely to be a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders Company’s stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Company’s stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event (i) any such statement or other disclosure shall be subject to the terms and conditions of this Section 6.3(cAgreement, including the provisions of Article VIII, and (ii) affect the obligations any such statement or disclosure (other than a “stop, look and listen communication” of the Company set forth in Sections 6.2 type contemplated by Rule 14d-9(f) under the Exchange Act, and 6.3; and provided, further, that any such disclosure will within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless it is accompanied by a statement of the Company Board of Directors expressly and publicly reaffirms reaffirming the Company Board Recommendation within five Business Days of in connection with such statement or disclosure.
Appears in 1 contract
Samples: Merger Agreement (NetApp, Inc.)
Company Board Recommendation. (a) Subject to During the terms of Section 6.3(b) and Section 6.3(c)Pre-Closing Period, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) (A) (1) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, (ii) withhold, withdraw, amend withdraw (or modify or qualify in a manner adverse to ParentParent or Merger Sub), or publicly propose to fail to make, withhold, withdraw, amend withdraw (or modify or qualify in a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation, (iii2) adoptfail to include the Company Board Recommendation in the Proxy Statement, or (3) approve, recommend or declare advisable, or publicly propose to approve, recommend, endorse or otherwise declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (B) if any tender offer or exchange offer is commenced for equity securities of the Company, fail to recommend against such tender offer or exchange offer by the earlier of (1) the 10th business day after the commencement of such tender or exchange offer or (2) the 3rd business day prior to the Company Stockholders Meeting, (C) following the public disclosure of an Acquisition Proposal, fail to publicly reaffirm the Company Board Recommendation within five (5) business days after Parent so requests in writing (it being understood that, only with respect that the Company shall not be required by this Section 5.1(a) to a tender offer or exchange offer, taking a neutral position or no position (other make more than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) one such reaffirmation with respect to any particular Acquisition Proposal shall be considered a breach of this clause (iii)Proposal), or (ivD) resolve, resolve or agree or publicly propose to take do any such actions of the foregoing (each such foregoing any action or failure to act described in clauses this clause (i) through (iv) being referred to herein as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract (including any letter of intent, memorandum of understanding or agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreement) relating to any Acquisition Proposal or requiring the Company to abandon or terminate the Transactions (an “Company Board Recommendation ChangeAlternative Acquisition Agreement”). , or reasonably expected to cause the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Timereceipt of the Company Required Vote:
(i) if the Company has received a written Qualifying Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 4.3 (other than an unintentional and immaterial breach)) from any Person that has not been withdrawn and after consultation with outside legal counsel, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, prior to receipt of the Company Required Vote (A) the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that or (iB) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer in accordance with Section 7.1(h), if and only if: (1) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) counsel and financial advisors, that the failure to effect do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(h) at least four business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not, in and of itself, constitute a Company Adverse Change Recommendation if the Company Board publicly reaffirms the Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalDetermination no later than the day immediately following the expiration of the negotiation period described in this clause (i)); and (ii3) (x) the Company has notified shall have provided to Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including summary of the material terms and conditions of any the Acquisition Proposal and provided to Parent the latest drafts of the definitive agreement to effect such Superior Proposal and a copy of Offer, any financing commitments or other agreements to be entered into in connection with such Superior Offer, (y) the final form of any related agreements or a description in reasonable detail of such Intervening Event, as Company shall have given Parent four business days after the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that Determination Notice to propose revisions to the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes terms of this Agreement); (iii) if requested by Parent, the Company Agreement or make another proposal and shall have made its Representatives reasonably available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications Parent (to the terms and conditions of this Agreement during the three (3extent Parent requests to negotiate) Business Day period following delivery by the Company with respect to Parent of such Recommendation Change Notice; proposed revisions or other proposal, if any, and (ivz) if Parent shall have delivered after considering the results of any such negotiations and giving effect to the Company a written proposal capable of being accepted proposals made by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodParent, if any, after consultation with outside legal counsel and financial advisors, the Company Board shall have determined determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(h) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 5.1 to the extent that any such communication expressly reaffirms the Company Board Recommendation. The provisions of this Section 5.1(b)(i) shall also apply to any amendment to any of the economic terms of the Acquisition Proposal or any other material amendments to the terms of any Acquisition Proposal and require a new Determination Notice, except that the references to four business days shall be deemed to be three business days, during which time the Company and its Representatives shall continue to comply with clause (3) above; and
(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four business days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail, (2) the Company shall have given Parent the four business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Change in Circumstances would no longer necessitate a Company Adverse Change Recommendation, and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent requests to do so) with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel)counsel and financial advisors, after considering the terms of such proposal by ParentCompany Board shall have determined, in good faith, that a the failure to make the Company Adverse Change Recommendation in response to such Change in Circumstance would be inconsistent with the fiduciary duties of the Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders Company’s stockholders under applicable Delaware LawLegal Requirements. Any material amendment or modification For the avoidance of doubt, the provisions of this Section 5.1(b)(ii) shall also apply to any Superior Proposal will material change to the facts and circumstances relating to such Change in Circumstance shall require a new Determination Notice, except that the references to four business days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The three business days, during which time the Company and its Representatives shall keep confidential any proposals made by Parent continue to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportscomply with clause (3) above mutatis mutandis.
(c) Nothing in this the Confidentiality Agreement shall prohibit or limit the ability of Parent or any of its Affiliates or Representatives to make any proposals to, or undertake any negotiations with, the Company Board from (i) taking and disclosing to the Company Stockholders a position as contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth 5.1 or otherwise in Sections 6.2 and 6.3; and provided, further, that connection with any such disclosure will be deemed to be Acquisition Proposal made by a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurethird party.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption advisable, any Acquisition Proposal, (C) after public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the two or no position three business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within 10 business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or cause or allow the Company to execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Offer Acceptance Time, and subject to compliance with the other provisions of this Section 6.1:
(i) if the Company has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel and its financial advisor, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal constitutes a Superior Offer, (x) the Board of Directors may make a Company Adverse Change Recommendation, or (y) provided that the Company is not in breach of Section 5.3 in any material respect and in a manner that led to such Acquisition Proposal and subject to the other provisions of Section 8.1(e), the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e) at least three business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation or termination) and, if requested in writing by Parent during such three business day period, shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(c), as well as a copy of any acquisition agreement with respect to such Acquisition Proposal and a copy of any financing commitments relating thereto (or, if not provided in writing to the Company, a written summary of the material terms thereof), (2) the Company shall have given Parent the three business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel and its financial advisor, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal constitutes a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. Issuance of any “stop, look and listen” communication made in compliance with by or on behalf of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, taking and disclosing a position or otherwise making any disclosure as is required under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or otherwise complying with applicable Legal Requirements shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or other material amendment to any Acquisition Proposal and require a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, all references to “three business days” shall be deemed to be “two business days”); and
(ii) other than in connection with a Superior Offer (which shall be subject to Section 6.1(b)(i)), the Board of Directors may make a Company Adverse Change Recommendation in response to an Intervening Event if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least three business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such three business day period shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any Acquisition Proposal shall be considered a breach revisions to the terms of this clause (iii)), Agreement or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything another proposal to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect extent proposed by Parent so that a Company Board Adverse Change Recommendation Change provided that would no longer be necessary; and (iC) (1) the Company Board determines shall have specified in good faith reasonable detail the facts and circumstances that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the three business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of facts and circumstances specified by the Company set forth in Sections 6.2 pursuant to clause (C)(1) above and 6.3; and providedrequire a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, further, that any such disclosure will all references to “three business days” shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure“two business days”).
Appears in 1 contract
Samples: Merger Agreement (Forty Seven, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.3(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) publicly approve or recommend an Acquisition Proposal, (iii) adopt, approve, recommend, endorse or otherwise declare advisable fail to include the adoption of any Acquisition Proposal (it being understood that, only with respect Company Board Recommendation in the Proxy Statement when disseminated to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), Company Stockholders or (iv) resolve, agree or publicly propose to take do any such actions of the foregoing (each such foregoing action or failure to act in of clauses (i), (ii), (iii) through and (iv) being referred to herein as an ), a “Company Board Recommendation Change”). ; provided, however, that, notwithstanding anything herein to the contrary, a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, any action contemplated by Section 5.3(c)(i) or any communication that is substantially similar to either of the foregoing, shall not be prohibited under the terms of this Agreement nor shall it be deemed to be a Company Board Recommendation Change or to constitute a breach of this Agreement; provided that any such disclosure by the Company shall state that the Company Board Recommendation continues to be in effect unless, prior to the time of such public disclosure, a Company Board Recommendation Change has been made in compliance with this Section 5.3.
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Stockholder Approval, the Company Board receives (or a Superior committee thereof) may (i) in response to (x) the receipt of a written Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2, or there occurs (y) the occurrence of an Intervening Event, the Company Board may effect a Company Board Recommendation Change Change, or (ii) in response to an Acquisition Proposal received after the date hereof that did not result from a material breach of Section 5.2, enter into a definitive agreement with respect to such applicable Acquisition Proposal and terminate this Agreement pursuant to Section 8.1(c)(ii); provided that (iA) the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company provides written notice to Parent at least three (3) Business Days (the “Notice Period”) prior to effecting a Company Board Recommendation Change would reasonably be expected or terminating this Agreement pursuant to be a breach Section 8.1(c)(ii) of its fiduciary duties intent to take such action, specifying the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change reasons therefor (a “Change of Recommendation Change Notice”) (it being understood that the any amendment to any material term of such Acquisition Proposal shall require a new Notice of Recommendation Change and a new Notice shall not constitute a Period), (D) prior to effecting such Company Board Recommendation Change for purposes of or terminating this AgreementAgreement pursuant to Section 8.1(c)(ii); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives to, be reasonably available to discuss and negotiate with Parent in good faith with Parent’s Representatives any proposed modifications (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement during as would obviate the three (3) Business Day period following delivery by the basis for a Company to Parent of such Board Recommendation Change Notice; and (iv) if Parent shall have delivered to or the Company a written proposal capable of being accepted by the Company to alter the terms or conditions termination of this Agreement during pursuant to Section 8.1(c)(ii), and (E) no earlier than the end of such three (3) Business Day period, the Company Board shall have determined (or a committee thereof) determines in good faith (after consultation with its financial advisor(s) and outside legal counsel), after considering any amendments to the terms and conditions of this Agreement proposed by Parent in a binding written offer irrevocably made by Parent during such proposal by Parentthree (3) Business Day period, that a Company Board Recommendation Change is still necessary in light of the failure to take such Superior Proposal or Intervening Event in order action would be reasonably likely to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware LawLaw (and, in the case of receipt of such Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal). Any material amendment or modification to any Following delivery of a Change of Recommendation Notice in the case of a Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this AgreementProposal, other than in the event of any amendment change to the financial terms (including any change to the amount or form of consideration payable) or other revision to the material terms or conditions of such Acquisition Proposal, the Company shall provide a new Change of Recommendation Notice to Parent, and any Company Board Recommendation Change or termination of this Agreement pursuant to Section 8.1(c)(ii) following delivery of such new Change of Recommendation Notice shall again be subject to clause (C) and to clause (D) of the extent required to be disclosed in any Company SEC Reportsimmediately preceding sentence for a period of two (2) Business Days.
(c) Nothing Notwithstanding anything herein to the contrary, nothing in this Agreement shall prohibit the Company or the Company Board (or a committee thereof) from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, provided that in no event shall this Section 6.3(c5.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will not be deemed to be permit the Company Board to make a Company Board Recommendation Change unless except to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureextent expressly permitted by Section 5.3(b).
Appears in 1 contract
Samples: Merger Agreement (Cerevel Therapeutics Holdings, Inc.)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(bSection 5.3(c), Section 5.3(d) and Section 6.3(cSection 5.3(e), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt approve this Agreement and the Plan of Merger (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent in any material respect, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to ParentParent in any material respect, the Company Board Recommendation, (iiiRecommendation,(ii) adopt, approve, approve or recommend or propose to approve or recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect any action referred to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through and (ivii) being referred to herein as an a “Company Board Recommendation Change”), provided, however, that a “stop, look and listen” communication by the Company Board to the Company Shareholders pursuant to Rule 14d-9(f) of the Exchange Act, or any communication under Israeli law with substantially similar content, shall not be deemed to be a Company Board Recommendation Change, or (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.2(c) entered into in the circumstances referred to in Section 5.2(c)) (an “Alternative Acquisition Agreement”). The Company shall, within twenty four (24) hours following a determination by the Company Board (after consultation with its outside legal counsel and financial advisors) that an Acquisition Proposal constitutes a Superior Proposal, notify Parent in writing of such determination.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Company Shareholder Approval, the Company Board receives a Superior Proposal (or there occurs an Intervening Event, the Company Board any committee thereof) may (x) effect a Company Board Recommendation Change provided that and/or (y) if it elects to do so in connection with or following a Company Board Recommendation Change, terminate this Agreement pursuant to Section 9.1(e) in order to enter into a written definitive agreement with respect to a Superior Proposal, in each case, if (i) the Company receives a written, bona fide Acquisition Proposal from a third party (provided that the making of such Acquisition Proposal by the third party is not in violation of such third party’s standstill obligations to the Company (if any)), (ii) a material breach by the Company of Section 5.2 or this Section 5.3 has not contributed to the making of such Acquisition Proposal; (iii) the Company Board (or any committee thereof) concludes in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board (or any committee thereof); (iv) the Company Board (or any committee thereof) determines in good faith (after consultation with its outside U.S. legal counselcounsel and financial advisors) that the failure to effect a Company Board Recommendation Change and/or terminate this Agreement pursuant to Section 9.1(e) would reasonably be expected to be inconsistent with the fiduciary duties of the directors of a Delaware corporation under Delaware Law; (v) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change and/or terminate this Agreement in respect of such Superior Proposal, describing in reasonable detail the reasons for such Company Board Recommendation Change and/or termination (a “Recommendation Change Notice”), and shall have contemporaneously provided a copy of the proposed Alternative Acquisition Agreement with respect to such Superior Proposal (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (vi) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business-Day period immediately following the delivery by the Company to Parent of such Recommendation Change Notice; and (vii) if Parent shall have delivered to the Company a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business-Day period, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with its outside U.S. legal counsel and financial advisors) after considering the terms of such offer by Parent, that the failure to effect a Company Board Recommendation Change and/or terminate this Agreement pursuant to Section 9.1(e) would still reasonably be expected to be inconsistent with the fiduciary duties of directors of a Delaware corporation under Delaware Law; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or substantially concurrently with such termination the Company (1) pays the Parent the Termination Fee required by and pursuant to the terms of Section 9.3(b)(ii), and (2) immediately following such termination enters into a binding definitive contract for such Superior Proposal. In the event of any material revisions to the terms of the Superior Proposal, the Company shall be required to deliver a new Recommendation Change Notice to the Parent and to comply with the requirements of this Section 5.3 with respect to such new Recommendation Change Notice, and the three (3) Business Day-period referred to in clause (vi) shall be deemed to have re-commenced on the date of such new notice.
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (or any committee thereof) may effect a Company Board Recommendation Change in response to an Intervening Event if (i) the Company Board (or any committee thereof) determines in good faith (after consultation with its outside U.S. legal counsel and financial advisors) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the Company Stockholders directors of a Delaware corporation under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified delivered a Recommendation Change Notice to Parent in writing that it intends regarding its intention to effect a Company Board Recommendation ChangeChange in respect of such Intervening Event, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day Day-period immediately following the delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day Day-period, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with its outside U.S. legal counsel), counsel and financial advisors) after considering the terms of such proposal offer by Parent, that the failure to effect a Company Board Recommendation Change is would still necessary in light of such Superior Proposal or Intervening Event in order reasonably be expected to comply be inconsistent with its the fiduciary duties to the Company Stockholders of directors of a Delaware corporation under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in In the event of any amendment material changes to this Agreement the facts and circumstances of such Intervening Event, the Company shall be required to deliver a new Recommendation Change Notice to the Parent and to comply with the extent required requirements of this Section 5.3 with respect to such new Recommendation Change Notice, and the three (3) Business Day-period referred to in clause (iii) shall be disclosed in any Company SEC Reportsdeemed to have re-commenced on the date of such new notice.
(ce) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders Shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act (or any communication under Israeli law with substantially similar content) or a position contemplated by Section 329 of the ICL, or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders Shareholders that the Company Board determines in good faith (after consultation with its outside legal counselcounsel and financial advisors) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosure.this Agreement, including the provisions of Article X.
Appears in 1 contract
Samples: Merger Agreement (Given Imaging LTD)
Company Board Recommendation. (a) Subject to the terms provisions described below, XxXxxxx’s board of Section 6.3(b) and Section 6.3(c), the Company Board shall directors agreed to recommend that the holders of Company the Shares accept the Offer, tender their Company Shares to Acquisition Sub the Purchaser pursuant to the Offer and, if required by necessary under applicable law, adopt the Merger Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement (DGCL. This is referred to as the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail ” XxXxxxx’s board of directors also agreed to make include the Company Board Recommendation in the Schedule 14D-9 and to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse permit Xxxxx to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, include the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption Recommendation in this Offer to Purchase and related Offer documents. The Merger Agreement provides that XxXxxxx’s board of any Acquisition Proposal (it being understood that, only directors will not effect a Change of Board Recommendation except as described below. ImClone’s board of directors may effect a Change of Board Recommendation with respect to a tender offer Superior Proposal, or exchange offer, taking otherwise terminate the Merger Agreement to enter into a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) definitive agreement with respect to any a Superior Proposal: • if XxXxxxx has received an Acquisition Proposal shall be considered a breach that the ImClone board of this clause (iii))directors concludes, or (iv) resolvein good faith, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreementafter consultation with its outside legal counsel and financial advisors, if, at any time prior to the Appointment Time, the Company Board receives constitutes a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that giving effect to any modifications to the failure Merger Agreement offered by Parent); • if ImClone has not breached the no-solicitation provisions of the Merger Agreement; • if at least three business days prior to effect such action, ImClone has provided Lilly a Company Board Recommendation Change would reasonably be expected to be a breach written notice of its fiduciary duties intention to the Company Stockholders under applicable Delaware Lawtake such action, and which we refer to as a “notice of change in the case recommendation.” The notice of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent change in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including recommendation must specify the material terms and conditions of any such the Superior Proposal and Proposal, including a copy of the final form Superior Proposal and identifying the person making the Superior Proposal; • if during the three business day period after Xxxxx’x receipt of any related agreements or a description the notice of change in reasonable detail of such Intervening Eventrecommendation, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate ImClone has negotiated with Lilly in good faith with Parent’s Representatives any proposed modifications (if Lilly desires to negotiate) to make such adjustments in the terms and conditions of this the Merger Agreement during the three (3) Business Day period following delivery by the Company to Parent of so that such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Acquisition Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed ceases to be a new Superior Proposal; and • if ImClone desires to terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal, ImClone has paid the Termination Fee (as defined below) substantially concurrently with the termination. The Merger Agreement provides that any material revisions to a Superior Proposal for purposes require ImClone to deliver a new notice of this Section 6.3change in recommendation and a new three business day period described above. The Company shall keep confidential any proposals made by Parent to revise the terms In addition, XxXxxxx’s board of this Agreement, directors may effect a Change of Board Recommendation other than in the event connection with a Superior Proposal but only in response to an Intervening Event (as defined below) if: • ImClone’s board of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board directors determines in good faith (faith, after consultation with its outside legal counsel) , that the failure to make such disclosure effect a Change of Board Recommendation would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders ImClone’s shareholders under applicable Delaware Lawlaw; provided• at least three business days prior to such Change of Board Recommendation, howeverImClone provided Lilly with a notice of change in recommendation specifying the facts, that in no event shall this Section 6.3(c) affect circumstances and other conditions giving rise to such proposed Change of Board Recommendation; and 42 Table of Contents • during the obligations three business day period following Xxxxx’x receipt of the Company set forth notice of change in Sections 6.2 and 6.3; and providedrecommendation, further, ImClone has negotiated in good faith (if Lilly desires to negotiate) regarding adjustments to the terms of the Merger Agreement so that any such disclosure will be deemed to be a Company Change in Board Recommendation Change unless is not necessary. For purposes of this Offer to Purchase and the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.Merger Agreement:
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board nor Recommendation in the Offer Documents. None of the Company, the Board of Directors of the Company or any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iii)(A) withhold, withdraw, amend qualify or modify in a manner adverse to ParentParent or Purchaser, or publicly propose announce any intention to withhold, withdraw, amend qualify or modify in a manner adverse to ParentParent or Purchaser, the Company Board Recommendation, or fail to include the Company Board Recommendation in (iiior remove from) the Schedule 14D-9 or (B) approve, endorse, recommend or declare advisable, or publicly propose or announce any intention to approve, endorse, recommend or declare advisable, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend, endorse submit to stockholders or otherwise declare advisable the adoption of advisable, or resolve or determine to adopt, approve, recommend, submit to stockholders or declare advisable, or allow any Acquired Corporation to execute or enter into any Contract constituting any Acquisition Proposal (it being understood thatProposal, only or requiring, or reasonably likely to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with respect to a tender offer or exchange offerbe inconsistent with, taking a neutral position or no position the Transactions (other than in a communication made in compliance with Rule 14d-9(fan Acceptable Confidentiality Agreement) promulgated under the Exchange Act) with respect to (any such Contract, an “Alternative Acquisition Proposal shall be considered a breach of this clause (iii)Agreement”), or except in each case as expressly permitted by Section 6.1(b).
(ivb) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting, for the Appointment first time, for payment Shares validly tendered and not properly withdrawn pursuant to the Offer (the “Offer Acceptance Time, ”) the Company Company’s Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board of Directors may effect make a Company Board Adverse Change Recommendation Change provided that or terminate this Agreement to enter into a Specified Agreement if and only if:
(i) if the decision to make a Company Adverse Change Recommendation or terminate this Agreement to enter into a Specified Agreement is in connection with an Acquisition Proposal, (A) the Company is not in breach of Section 5.3, (B) the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.3) from any Person that has not been withdrawn; (C) the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer; (D) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Legal Requirements; (E) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement to enter into a Specified Agreement at least three (3) business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); (F) (1) the Company shall have provided to Parent the material terms and conditions of the Acquisition Proposal and copies of all material documents relating to such Acquisition Proposal in accordance with Section 5.3, (2) the Company shall have given Parent the three (3) business days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent) with respect to such proposed revisions or other proposals, if any, so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel) , the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to effect make the Company Adverse Change Recommendation or terminate this Agreement to enter into a Company Board Recommendation Change Specified Agreement would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company Stockholders Company’s stockholders under applicable Delaware Law, Legal Requirements; and in the case of a Superior Proposal, (G) if the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect terminate this Agreement to enter into a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Specified Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available complied with Section 8.1(f). For the avoidance of doubt, the provisions of this Section 6.1(b)(i) shall also apply to discuss any material amendment to any Acquisition Proposal or any successive Acquisition Proposals and negotiate require a new Determination Notice, except that, in the case of material amendments to any Acquisition Proposal, the references to three (3) business days shall be deemed to be two (2) business days; or
(ii) if the decision to make a Company Adverse Change Recommendation in not in connection with an Acquisition Proposal, (A) a Change in Circumstance shall have occurred, (B) the Company’s Board of Directors determines in good faith faith, after consultation with Parentthe Company’s Representatives any proposed modifications outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the terms Company’s stockholders under applicable Legal Requirements; (C) the Company shall have given Parent a Determination Notice at least three (3) business days prior to making any such Company Adverse Change Recommendation; and conditions of this Agreement during (D) (1) the Company shall have specified in reasonable detail the Change in Circumstance and the reasons for the Company Adverse Change Recommendation, (2) the Company shall have given Parent the three (3) Business Day period following delivery by business days after the Company Determination Notice to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered propose revisions to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during or make other proposals and shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent) with respect to such three proposed revisions or other proposals, if any, so that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, and (3) Business Day periodafter considering the results of such negotiations and giving effect to the proposals made by Parent, the Company Board shall have determined in good faith (if any, after consultation with outside legal counsel), after considering the terms Company’s Board of such proposal by ParentDirectors shall have determined, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) faith, that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to of the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations Board of Directors of the Company set forth to the Company’s stockholders under applicable Legal Requirements. For the avoidance of doubt, the provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 Circumstance and 6.3; and providedrequire a new Determination Notice, further, except that any such disclosure will the references to three (3) business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosuretwo (2) business days.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.2(b) and Section 6.3(c5.2(c), the Company Board shall unanimously recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Sharesmake, (ii) withhold, withdraw, amend or modify in a manner adverse to Parentthe Investors, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parentthe Investors, the Company Board Recommendation, (iiiii) adopt, approve, endorse, adopt or recommend, endorse or otherwise declare advisable the adoption of publicly propose to approve, endorse, adopt or recommend, any Acquisition Proposal or Superior Proposal, (it being understood that, only with respect iii) fail to a recommend against acceptance of any tender offer or exchange offer for the Common Stock within ten Business Days after the commencement of such offer, taking (iv) make a neutral position or no position public statement inconsistent with the Company Board Recommendation unless the Company Board determines in good faith (other than in a communication made in compliance after consultation with Rule 14d-9(foutside legal counsel) promulgated under that the Exchange Act) with respect failure to any Acquisition Proposal shall make such public statement would be considered a breach of this clause (iii))its fiduciary duties to the Company Stockholders under Delaware Law, or (ivv) resolve, resolve or agree or publicly propose to take any such of the foregoing actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an any of the foregoing, a “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifforegoing, at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Stockholder Approval, the Company Board may effect a Company Board Recommendation Change provided that (i) if following receipt of and on account of a Superior Proposal, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided that prior to effecting such Company Board Recommendation Change, and in the case of a Superior Proposal, (i) the Company Board approves or recommends shall give the Investors at least four Business Days advance notice thereof (the “Notice Period”) (which notice and any notice provided under Section 7.1(f), as well as the actions giving rise to such Superior Proposal; notice, shall not by themselves be deemed to be a Company Board Recommendation Change), (ii) the Company has notified Parent in writing that it intends shall attach to effect a Company Board Recommendation Change, describing in reasonable detail such notice the reasons, including most current version of the material terms and conditions of any proposed agreement relating to such Superior Proposal (which version or summary thereof shall be updated on a prompt basis) and a copy the identity of the final form of any related agreements or a description in reasonable detail of such Intervening EventPerson making the Superior Proposal, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives available to discuss financial and legal advisors to, during the Notice Period, negotiate with the Investors in good faith with Parent’s Representatives any proposed modifications to make such adjustments in the terms and conditions of this Agreement during so that such Acquisition Proposal ceases to constitute a Superior Proposal, if the three (3) Business Day period following delivery by Investors, in their discretion, propose to make such adjustments; it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least forty-eight hours remains in the Notice Period subsequent to the time the Company to Parent notifies the Investors of any such Recommendation Change Notice; material revision (it being understood that there may be multiple extensions) and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted Investors do not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to alter be at least as favorable to the terms or conditions stockholders of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of as such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsProposal.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and or (ii) making any disclosure to the Company Stockholders that the Company Board determines to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of fulfill its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article VII.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ikanos Communications)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not in and of itself be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment TimeOffer Closing, the Company Board receives a Superior Proposal (or there occurs an Intervening Event, the Company Board any committee thereof) may effect a Company Board Recommendation Change provided that if, (i) (x) the Company Board (or any committee thereof) receives an Acquisition Proposal not resulting from any breach of Section 6.2 that it determines in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Superior Proposal and the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, Law or (y) an Intervening Event occurs and in the case of as a Superior Proposal, result thereof the Company Board approves (or recommends such Superior Proposalany committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement) and, if applicable, has provided Parent a summary of any Superior Proposal and terms and conditions thereof (and a copy of any definitive agreements related thereto); (iii) if requested by Parent, the Company shall have discussed and negotiated in good faith, and shall have made its Representatives available to discuss and negotiate in good faith faith, with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to make such Company Board Recommendation Change would no longer reasonably be expected to be inconsistent with the Company Board’s fiduciary duties (and, if applicable, such Superior Proposal ceases to constitute a Superior Proposal) during the three (3) Business Day period following beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of such Recommendation Change Notice; Notice and ending three (iv3) if Parent Business Days later at 5:00 p.m. Eastern Time (it being understood and agreed that any amendment to any material term or condition of any Superior Proposal shall have delivered to the Company require a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such new Recommendation Change Notice and a new three (3) Business Day period); and (iv) no earlier than the end of the three Business Day period following receipt of the Recommendation Change Notice, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parentany proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change is would still necessary in light of such Superior Proposal or Intervening Event in order reasonably be expected to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material Law and, if applicable, the Company Board (or any committee thereof) determines in good faith, after consultation with its independent financial advisor and outside legal counsel, after considering the terms of any proposed amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event Acquisition Proposal that is subject of any amendment the Recommendation Change Notice continues to this Agreement and to the extent required to be disclosed in any Company SEC Reportsconstitute a Superior Proposal.
(cb) Nothing in this Agreement shall prohibit the Company Board (or any committee thereof) from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and and/or (ii) making any disclosure to the Company Stockholders that if the Company Board (or any committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, provided that any such disclosure will be deemed to be a Company Board Recommendation Change unless will be subject to the Board terms and conditions of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosurethis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Chelsea Therapeutics International, Ltd.)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.3, the Company Board shall recommend that the holders of Company Shares Stockholders accept the Offer, Offer and tender their Company Shares to Acquisition Merger Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Subject to Section 6.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal or (iii) adoptfail to include the Company Board Recommendation in the Schedule 14D-9 (each of clauses (i), approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(fii) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives may (i) in response to the receipt of a Superior written, bona fide Acquisition Proposal received after the date hereof that did not result from a material breach of Section 6.2(a) or there occurs the occurrence an Intervening Event, the Company Board may effect a Company Board Recommendation Change or, (ii) in response to the receipt of a written, bona fide Acquisition Proposal after the date hereof that did not result from a material breach of Section 6.2(a), enter into a definitive agreement with respect to such applicable Acquisition Proposal and terminate this Agreement pursuant to Section 9.1(c)(ii), provided that (iA) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company provides written notice to Parent at least five (5) Business Days prior to effecting a Company Board Recommendation Change or terminating this Agreement pursuant to Section 9.1(c)(ii) of its intent to take such action, specifying the reasons therefor (a “Change of Recommendation/Termination Notice”), including, in the case of receipt of an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (including a copy of all definitive agreements and documentation in respect thereof), (D) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 9.1(c)(ii), the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such five (5) Business Day period to make such adjustments in the terms and conditions of this Agreement as would reasonably obviate the basis for a Company Board Recommendation Change or the termination of this Agreement pursuant to Section 9.1(c)(ii) and (E) no earlier than the end of such five (5) Business Day period, the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel), after considering any proposed amendments to the terms and conditions of this Agreement agreed to in writing by Parent during such five (5) Business Day period, that the failure to take such action would be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware LawLaw (and, and in the case of receipt of such Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal). Following delivery of a Change of Recommendation/Termination Notice in the case of a Superior Proposal, in the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions event of any such Superior Proposal and a copy of change to the final financial terms (including any change to the amount or form of any related agreements consideration payable) or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available other material revision to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodAcquisition Proposal, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms provide a new Change of such proposal by Recommendation/Termination Notice to Parent, that a and any Company Board Recommendation Change is still necessary in light or termination of this Agreement pursuant to Section 9.1(c)(ii) following delivery of such Superior Proposal or Intervening Event in order new Change of Recommendation/Termination Notice shall again be subject to comply with its fiduciary duties clauses (C) through (E) of the immediately preceding sentence, except that references to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will five (5) Business Days shall be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; Law; provided, however, that in no event shall this Section 6.3(c6.3(d) affect the obligations of shall not permit the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed Board to be make a Company Board Recommendation Change unless except to the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureextent permitted by Section 6.3(c).
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, Parent or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parentthe Merger Sub, the Company Board RecommendationRecommendation with respect to the Merger, (ii) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (iii) adopt, approve, recommend, endorse or otherwise declare advisable after the adoption receipt of any Acquisition Proposal Proposal, fail to publicly reaffirm the Company Board Recommendation within ten (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or 10) Business Days after Parent so requests in writing (provided that Parent may make such request no position (other more than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) once with respect to any such Acquisition Proposal shall be considered a breach of this clause (iii)), Proposal) or (iv) resolve, agree or publicly propose fail to take include the Company Board Recommendation in the Proxy Statement (any such actions (each such foregoing action or failure to act described in clauses (i) through (iv) being referred to herein as an ), a (a “Company Board Recommendation Change”). Notwithstanding ; provided, however, that a “stop, look and listen” communication by the Company Board or any authorized committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change; and provided further, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifAgreement (including the provisions of Section 4.3 or Section 5.1), at any time prior to the Appointment Time, receipt of the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Stockholder Approval, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation accordance with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this AgreementSection 4.3(c); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cb) Nothing in this Agreement shall prohibit the Company Board or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines or any authorized committee thereof shall have determined to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of comply with its fiduciary duties to the Company Stockholders under applicable Delaware Lawlaw; provided, however, that that, in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and providedeither such case, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days or any authorized committee thereof shall be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article II.
Appears in 1 contract
Company Board Recommendation. (a) Subject to Unless the terms of Company Board has made a Company Adverse Change Recommendation in accordance with Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”Recommendation in the Offer Documents. During the Pre-Closing Period, unless the Company Board has made a Company Adverse Change Recommendation in accordance with Section 6.1(b).
(b) Neither , neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) fail to include the Company Board Recommendation in the Schedule 14D-9 or (C) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise resolve, agree or publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it any action described in this clause (i) being understood thatreferred to as a “Company Adverse Change Recommendation”); or (ii) adopt, only approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract (other than an Acceptable Confidentiality Agreement) with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal, or that requires, or is reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions.
(b) Notwithstanding anything to the contrary contained in Section 6.1(a), at any time prior to the Offer Acceptance Time:
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a material breach of Section 5.3) from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (A) the Company Board may make a Company Adverse Change Recommendation or (B) the Company may terminate this Agreement pursuant to Section 8.1(h) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (1) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a tender offer Company Adverse Change Recommendation or exchange offerterminate this Agreement pursuant to Section 8.1(h) at least four business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation) and, to the extent desired by Parent, during such four-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal contemplated to be provided in accordance with Section 5.3(d), (2) the Company shall have given Parent the four-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to any written proposals and any revised terms made by Parent in writing during such period, if any, after consultation with the Company’s financial advisors and outside legal counsel, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer and, after consultation with the Company’s outside legal counsel, that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(h) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material amendment or modification to any Acquisition Proposal and require a new Determination Notice, except that for purposes of the foregoing the references to four business days shall be deemed to be three business days. Nothing in this Section 6.1 or elsewhere in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the stockholders of the Company a neutral position contemplated by Rule 14e-2(a), Rule 14d-9 or no position (other than in a Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including any “stop, look and listen” communication made in compliance with pursuant to Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, Act if the Company Board receives determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; provided, that this last sentence of Section 6.1(b)(i) shall not be deemed to permit the Company Board to make a Superior Proposal or there occurs Company Adverse Change Recommendation except to the extent permitted by this Section 6.1; and
(ii) other than in connection with an Intervening EventAcquisition Proposal, the Company Board may effect make a Company Board Adverse Change Recommendation in response to a Change provided that in Circumstance, if and only if: (iA) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four business days prior to making any such Company Adverse Change Recommendation and, to the extent desired by Parent, during such four-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Change Recommendation would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances underlying the Change in Circumstance that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the four-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after considering the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined determined, in good faith (after consultation with outside legal counsel)faith, after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 Circumstance and 6.3; and providedrequire a new Determination Notice, furtherexcept that for purposes of such subsequent Determination Notice, that any such disclosure will the references to four business days shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosuretwo business days.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), (iv) fail to reaffirm the Company Board Recommendation within three (3) Business Days of a written request to do so by Parent, (v) in the case of Acquisition Proposal that is a tender or exchange offer, fail to have filed within ten (10) Business Days after the public announcement of the commencement of such Acquisition Proposal a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the Company Stockholders reject such Acquisition Proposal and not tender any shares of Company Common Stock into such tender or exchange offer, or (ivvi) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (ivvi) being referred to herein as an a “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act, or any substantially similar communication following the public announcement or disclosure of any Acquisition Proposal that is not a tender offer or exchange offer that is limited to the information permitted by such rule, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following beginning at 5:00 p.m. Pacific Time on the day of delivery by the Company to Parent of such Recommendation Change NoticeNotice and ending three (3) Business Days later at 5:00 p.m. Pacific Time; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to effect a Company Board Recommendation Change is would still necessary in light reasonably be expected to be a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal or any material change to an Intervening Event will be deemed to be a new Superior Proposal or Intervening Event for purposes of this Section 6.36.3 (and require a new three (3) Business Day period, measured as set forth above). The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports. Effective as of any such Company Board Recommendation Change, Sections 9 and 10 of the Confidentiality Agreement shall become null and void and of no further force and effect.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosure.this Agreement, including the provisions of Article X.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
Company Board Recommendation. (a) Subject to the terms provisions described below, AST’s board of Section 6.3(b) and Section 6.3(c), the Company Board shall directors agreed to recommend that the holders of Company Shares AST’s shareholders accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Lawlaw, adopt this Agreement (the Merger Agreement. This is referred to as the “Company Board Recommendation”).
(b) Neither the Company Board ” The Merger Agreement provides that, except as described below, neither AST’s board of directors nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdrawwithdraw (or not continue to make), amend change, qualify or modify in a manner adverse to ParentParent or the Purchaser, or propose publicly propose to withhold, withdrawwithdraw (or not continue to make), amend change, qualify or modify in a manner adverse to ParentParent or the Purchaser, the Company Board RecommendationRecommendation or any approval or recommendation by any such committee regarding the Merger Agreement, the Offer and the Merger, or approve or recommend, or propose publicly to approve or recommend any Takeover Proposal, or resolve or agree to take any such action, (ii) fail to publicly recommend against any Takeover Proposal or fail to publicly reaffirm the Company Recommendation or any approval or recommendation by any such committee regarding the Merger Agreement, the Offer and the Merger within two business days after Parent so requests, (iii) adoptfail to include the Company Recommendation in the documents filed with the Schedule TO and the documents included therein (together with any supplements or amendments thereto) or the proxy statement sent to AST’s shareholders in connection with the shareholder meeting to approve the Merger, (iv) approve or recommend, or propose publicly to approve, recommendrecommend or permit AST or any of its affiliates to enter into, endorse any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or otherwise declare advisable the adoption of other agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Takeover Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than pursuant to a confidentiality agreement with standstill provisions identical in a communication made all substantive respects to, and which otherwise contains terms Table of Contents that are no less favorable to AST than, those contained in compliance its confidentiality agreement with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)Parent), or (ivv) resolve, agree take any other action or publicly propose make any other public statement that is inconsistent with the Company Recommendation (any such action or resolution or agreement to take any such actions (each such foregoing action or failure to act in clauses (i) through - (ivv) above being referred to herein as an “Company Board Adverse Recommendation Change”). Notwithstanding Before the foregoing or anything first to occur of the Purchaser accepting for payment Shares tendered in the Offer and the meeting of AST’s shareholders to approve the Merger, AST’s board of directors may effect an Adverse Recommendation Change in response to a Superior Proposal if: • AST has received a Takeover Proposal with respect to which the AST board of directors has determined in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to take such action would be inconsistent with its fiduciary duties to the contrary set forth in this shareholders of AST under applicable law; • the Superior Proposal is not attributable to the breach of the no solicitation provisions of the Merger Agreement, if, including those described above; • at any time least three business days prior to the Appointment TimeAdverse Recommendation Change, AST has provided Parent a written notice of its intention to (i) effect an Adverse Recommendation Change or (ii) terminate the Company Board receives Merger Agreement in order to enter into a definitive agreement that constitutes a Superior Proposal, which we refer to as a “notice of an adverse recommendation change.” The notice of an adverse recommendation change must identify the persons making such Superior Proposal and contain a description in reasonable detail of the facts and circumstances giving rise to the proposed Adverse Recommendation Change and of the material terms and conditions of the Superior Proposal, including a copy of the definitive acquisition agreement relating to such Superior Proposal and any information concerning AST or its subsidiaries provided to the third party making such Superior Proposal which was not previously provided to Parent; • during the three business day period after Xxxxxx’s receipt of the notice of an adverse recommendation change, AST has, and has caused its representatives to, if requested by Xxxxxx, negotiated in good faith with Parent and its representatives regarding any such revisions to the terms of the transactions contemplated by the Merger Agreement; and • during the three business day period after Xxxxxx’s receipt of the notice of an adverse recommendation change, Parent has not made a proposal that, in the reasonable good faith judgment of AST’s board of directors (after consultation with its outside legal counsel and financial advisor), causes the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or there occurs an Intervening Event, that otherwise permits AST’s board of directors to proceed with the Company Board may effect Recommendation and not proceed with the Adverse Recommendation Change. The Merger Agreement provides that any material changes to the facts and circumstances giving rise to a Company Board proposed Adverse Recommendation Change or the financial terms or any material change to other material terms of such Superior Proposal occurring prior to AST’s effecting an Adverse Recommendation Change shall require AST to provide to Parent a new notice of an adverse recommendation change and a new notice period and to comply with the requirements of the Merger Agreement (including those described above) with respect to each such new written notice. In all circumstances in which AST’s board of directors is permitted to effect an Adverse Recommendation Change, it may also terminate the Merger Agreement to enter into a definitive acquisition agreement that constitutes a Superior Proposal in accordance with the provisions applicable to an Adverse Recommendation Change, provided that AST has paid the Termination Fee (i) as defined below). Except to the Company Board extent the board of directors of AST determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be a breach of its inconsistent with the directors’ fiduciary duties to the Company Stockholders shareholders of AST under applicable Delaware Lawlaw, AST agreed that it shall not terminate, waive, amend or modify any Table of Contents provision of any standstill, confidentiality or non-solicitation agreement to which it or any of its subsidiaries is a party and that relates to a Takeover Proposal, and in AST agreed to take all necessary actions and use its reasonable best efforts to enforce, to the case of a Superior Proposalfullest extent permitted by applicable law, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions provisions of any such Superior Proposal agreement, including by obtaining injunctions to prevent any breaches and a copy of to enforce specifically the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for terms and provisions thereof. For purposes of this Offer to Purchase and the Merger Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.:
Appears in 1 contract
Samples: Offer to Purchase (Raytheon Co/)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c7.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by inclusion of a description of the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shareswithdraw or withhold (or modify, (ii) withhold, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withholdwithdraw or withhold (or modify, withdraw, amend change or modify qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal Proposal, (it being understood that, only with respect to C) if a tender offer or exchange offer, taking a neutral position or no position offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (other than in a communication made in compliance with within the meaning of Rule 14d-9(f) promulgated 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or 10 Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal (provided, however, that Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently publicly modified in any material respect in which case Parent may make such request once each time such modification is made) (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow the Company or any other Acquired Corporation to execute or enter into any Contract (A) with respect to any Acquisition Proposal shall be considered a breach of this clause or (iii))B) requiring, or which would reasonably be expected to cause, the Company to abandon, terminate, delay or fail to consummate the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to accepting for payment such number of Shares validly tendered and not validly withdrawn pursuant to the Appointment Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”):
(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not result from or arise out of a breach of Section 6.3(a)) from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Company Board receives shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal or there occurs an Intervening EventOffer, (x) the Company Board may effect make a Company Board Adverse Change Recommendation Change provided that or (iy) the Company may terminate this Agreement pursuant to Section 9.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each such case, if and only if: (A) the Company Board determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposalunder applicable Law; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail or terminate this Agreement pursuant to Section 9.1(e) at least five (5) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation ); and (C) (1) the reasons, including Company shall have provided to Parent a summary of all the material terms and conditions of any such Superior the Acquisition Proposal and all other information to be provided in accordance with Section 6.3(d), including a copy of the final form agreements (including financing arrangements) with respect to such Acquisition Proposal, (2) the Company shall have given Parent the five (5) Business Days after Parent’s receipt of any related agreements the Determination Notice to propose revisions to the terms of this Agreement or a description in reasonable detail of make another proposal, so that such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not Acquisition Proposal would cease to constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if Superior Offer, and, to the extent requested by Parent, the Company shall have made its Representatives available to discuss and negotiate negotiated in good faith with Parent’s Parent and its Representatives any with respect to such proposed modifications to the terms revisions or other proposal, if any, and conditions of this Agreement during the three (3) at the end of such five (5) Business Day period following delivery by (x) after consultation with the Company to Parent of such Recommendation Change Notice; Company’s financial advisors and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodoutside legal counsel, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer and (y) after consultation with the Company’s outside legal counsel), after considering the terms of such proposal by Parent, that a the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(e) would be inconsistent with the fiduciary duties of the Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware LawLaws. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes For the avoidance of doubt, the provisions of this Section 6.3. The Company 7.1(b)(i) shall keep confidential also apply to any proposals made by Parent change to revise any of the financial terms (including the form, amount and timing of this Agreementpayment of consideration) or any other material amendment to any Acquisition Proposal, each of which will require a new Determination Notice (except that the references to five (5) Business Days shall instead be three (3) Business Days); and
(ii) other than in the event of any amendment connection with an Acquisition Proposal (which shall be subject to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit Section 7.1(b)(i)), the Company Board from may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (iA) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Laws; (B) the Company shall have given Parent a Determination Notice at least five (5) Business Days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail in the Determination Notice, including the facts and circumstances that render a Company Adverse Change Recommendation necessary in the determination of the Company Board, (2) the Company shall have given Parent the five (5) Business Days after Parent’s receipt of the Determination Notice to propose revisions to the terms of this Agreement or make another proposal, and shall have negotiated in good faith with Parent and its Representatives, to the extent Parent desires to do so, with respect to such proposed revisions or other proposal, if any, and (3) after considering any such revisions or proposals and the results of any such negotiations and giving effect to the revisions or proposals made by Parent, if any, after consultation with its outside legal counsel) , the Company Board shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation in response to such disclosure Change in Circumstance would reasonably be expected to be a breach of its inconsistent with the fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth Board under applicable Law. For the avoidance of doubt, the provisions of this Section 7.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Sections 6.2 and 6.3; and providedCircumstance, further, each of which will require a new Determination Notice (except that any such disclosure will be deemed the references to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five (5) Business Days of such disclosureshall instead be three (3) Business Days).
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Except as otherwise expressly provided in this Section 6.3(b) and Section 6.3(c)5.3, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parent, the Company Board Recommendation, (ii) adopt a resolution to approve or recommend or propose publicly to approve or recommend any Acquisition Proposal, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of if any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any offer that constitutes an Acquisition Proposal shall be considered a breach is commenced, recommend in favor of this clause (iii))such Acquisition Proposal, or (iv) resolveat any time after receipt or public announcement of an Acquisition Proposal, agree fail to publicly recommend against such Acquisition Proposal or fail to publicly propose reaffirm the Company Board Recommendation, in each case within ten (10) Business Days after receipt of written request by Parent to take do so (any such actions (each such action referred to in the foregoing action or failure to act in clauses (i), (ii) through and (iii), and this clause (iv) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Company Shareholder Approval, if the Company or any of its Subsidiaries receives a bona fide written Acquisition Proposal which did not result from a breach of Section 5.2 and was made after the date of this Agreement and not withdrawn and that the Company Board receives determines, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that (i) and the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law, the Company Board may (x) effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties and/or (y) subject to the Company Stockholders under applicable Delaware Lawconcurrent or prior payment of the Termination Fee to Parent, and terminate this Agreement pursuant to Section 9.1(g) in the case of a Superior Proposalorder to, the Company Board approves or recommends concurrently with such termination, enter into an Alternative Transaction Agreement with respect to such Superior Proposal; (ii) provided, however, that the Company has notified Parent in writing that it intends to Board may not effect a Company Board Recommendation Change, describing in reasonable detail Change or terminate this Agreement pursuant to Section 9.1(g) and this Section 5.3(b) unless and until (A) the reasons, including Company shall have provided to Parent four (4) Business Days’ prior written notice advising Parent that the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) intends to take such action (it being understood agreed that such notice and any amendment or update to such notice and the Recommendation Change Notice determination to so deliver such notice, in each case in and of itself, shall not constitute a Company Board Recommendation Change for purposes of this Agreement) (a “Recommendation Change Notice”); , which Recommendation Change Notice shall include a copy of the proposed definitive agreements and other proposed transaction documentation between the Company and the Person making such Superior Proposal, if any, and (iiiB) (x) during such four (4) Business Day period, if requested in writing by Parent, the Company shall have made its Representatives available to discuss and negotiate engaged in good faith negotiations with Parent’s Representatives Parent regarding any amendment to this Agreement proposed modifications in writing by Parent and (y) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and conditions of this Agreement the other agreements contemplated hereby that may be offered in writing by Parent during the three four (34) Business Day period immediately following the delivery by the Company to Parent of such Recommendation Change Notice; Notice and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel), after considering ) that the terms of such proposal by Parent, Superior Proposal would continue to constitute a Superior Proposal and that the failure to effect a Company Board Recommendation Change is still necessary in light of response to such Superior Proposal or Intervening Event in order would still be reasonably likely to comply be inconsistent with its the directors’ fiduciary duties under Israeli Law if such adjustments were to be given effect. Notwithstanding anything herein to the Company Stockholders under applicable Delaware Law. Any contrary, the provisions of this Section 5.3(b) (including the Company’s obligations to provide notice and negotiate in good faith) shall also apply to every subsequent material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential Acquisition Proposal, including any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and change to the extent required to be disclosed in any Company SEC Reportsamount or form of consideration contemplated by an Acquisition Proposal.
(c) Nothing in this Agreement shall prohibit Notwithstanding anything to the contrary contained herein, the Company or the Company Board from shall be permitted to (i) taking and disclosing to the Company Stockholders a take or disclose any position contemplated by Rule 14e-2(a) Rules 14d-9 and 14e-2 promulgated under the Exchange Act (or complying take or disclose any position under Israeli Law with similar content), and to the provisions extent referred to therein, Item 1012(a) of Rule 14d-9 Regulation M-A promulgated under the Exchange ActAct with respect to any Acquisition Proposal, and (ii) making make any “stop, look and listen” communication to the Company Shareholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any communication under Israeli Law with similar content) or (iii) make any other disclosure to the Company Stockholders that Shareholders if the Company Board determines in good faith (faith, after consultation with its outside legal counsel) , that the failure of the Company Board to make such disclosure would be reasonably be expected likely to be a breach of its inconsistent with the directors’ fiduciary duties to the Company Stockholders under applicable Delaware Israeli Law; provided, however, that (A) in no event shall this Section 6.3(c5.3(c) affect the obligations specified in Section 5.3(a) or Section 5.3(b) (or the consequences thereof in accordance with this Agreement) or the definition of the Company set forth in Sections 6.2 Board Recommendation Change and 6.3; and provided, further, that (B) any such disclosure will (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or by the ICL) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Company Board Recommendation Change unless the Company Board of Directors in connection with such communication publicly reaffirms the Company Board Recommendation.
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, the Company Board may effect a Company Board Recommendation within five Change (solely pursuant to clause (i) of the definition thereof) in response to an Intervening Event, if (i) the Company Board determines in good faith after consultation with its financial advisor and outside legal counsel that the failure to effect such Company Board Recommendation Change in response to such Intervening Event would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law; and (ii) (A) the Company shall have provided to Parent four (4) Business Days’ prior written notice advising Parent that the Company Board intends to effect such Company Board Recommendation Change in respect of such Intervening Event, and describing in reasonable detail the Intervening Event and the reasons for such Company Board Recommendation Change (it being agreed that such notice, in each case in and of itself, shall not constitute such a Company Board Recommendation Change) and (B) (x) during such four (4) Business Days period, if requested in writing by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent and (y) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered in writing by Parent during the four (4) Business Days period immediately following the delivery by the Company to Parent of such disclosurenotice and the Company Board shall have determined (after consultation with its financial advisor and outside legal counsel) that the failure to effect such Company Board Recommendation Change in response to such Intervening Event would still be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Israeli Law if such adjustment were to be given effect. In the event of any material changes to the facts and circumstances of such Intervening Event, the Company shall be required to deliver a new notice to the Parent and to comply with the requirements of this Section 5.3 with respect to such facts and circumstances, and the four (4) Business Days’ period referred to in clauses (A) and (B) above shall be deemed to have re-commenced on the date of such new notice.
Appears in 1 contract
Samples: Merger Agreement (Frutarom LTD)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.2(b), the Company Board shall recommend that the holders of shares of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by Common Stock adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
(b) Neither Subject to the terms of this Section 5.2(b), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding ; provided, however, that, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Eventforegoing, the Company Board may effect a Company Board Recommendation Change provided that at any time prior to the receipt of the Requisite Merger Approval, if and only if (i) (x) the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal or (y) there is any Intervening Event, (ii) if such Company Board Recommendation Change is pursuant to Section 5.2(b)(i)(x), neither the Company nor any of its Subsidiaries shall have breached or violated (or be deemed, pursuant to the terms hereof, to have breached or violated) the provisions of Section 5.1 in any material respect, (iii) the Company Board reasonably determines in good faith (after consultation with outside legal counselcounsel and after considering in good faith any counter-offer or proposal made by Parent pursuant to clause (v) that below), that, in light of such Superior Proposal or Intervening Event, as applicable, the failure of the Company Board to effect a Company Board Recommendation Change would be reasonably be expected likely to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal(iv) prior to effecting such Company Board Recommendation Change, the Company Board approves shall have provided Parent with (A) if such Company Board Recommendation Change is pursuant to Section 5.2(b)(i)(x), the most current version of any written agreement or recommends proposal relating to the transaction that constitutes such Superior Proposal; , or (iiB) if such Company Board Recommendation Change is pursuant to Section 5.2(b)(i)(y), information describing such Intervening Event in reasonable detail, (v) the Company has notified shall have given Parent in writing at least five (5) Business Days notice that it intends is prepared to effect a Company Board Recommendation Change in response to a Superior Proposal or an Intervening Event, as applicable, and, if requested by Parent, the opportunity to meet with the Company and its outside legal counsel, all with the purpose and intent of enabling Parent and the Company to discuss in good faith any modification of the terms and conditions of this Agreement proposed by Parent so that the transactions contemplated hereby may be effected without a Company Board Recommendation Change, and (vi) Parent shall not have made, within five (5) Business Days after receipt of the Company’s written notice of its intention to effect a Company Board Recommendation Change, describing in reasonable detail a counter-offer or proposal that the reasonsCompany Board reasonably determines, including after consultation with its outside legal counsel and a Financial Advisor, is at least as favorable to the material terms and conditions of any Company Stockholders as such Superior Proposal and a copy or, in the case of the final form of any related agreements or a description in reasonable detail of such an Intervening Event, as obviates the case may be, need for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes as a result of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or an Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsEvent.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that that, in no event shall this Section 6.3(ceach case, any statement(s) affect the obligations of made by the Company set forth in Sections 6.2 Board pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act shall be subject to the terms and 6.3conditions of this Agreement, including the provisions of Article VII; and providedprovided further, furtherhowever, that any such statement or disclosure will (other than a factually accurate public statement by the Company that does no more than describe the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, and within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless if the Company Board of Directors does not expressly publicly reaffirms reaffirm the Company Board Recommendation within five Business Days of in connection with such statement or disclosure.
(d) Nothing set forth in this Section 5.2 shall (i) permit the Company to terminate this Agreement, (ii) affect any other obligation of the Company under this Agreement, (iii) limit the obligation of the Company to duly call, give notice of, convene and hold the Company Stockholder Meeting, (iv) relieve the Company of its obligation to solicit proxies for the Company Stockholder Meeting and submit to a vote of the Company Stockholders the Merger Proposal at the Company Stockholder Meeting, or (v) permit the Company to submit for a vote of the Company Stockholders at or prior to the Company Stockholder Meeting any matter other than the Merger Proposal.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, qualify, amend or modify in a manner adverse to ParentParent in any material respect, or publicly propose to AGREEMENT AND PLAN OF MERGER withhold, withdraw, qualify, amend or modify in a manner adverse to ParentParent in any material respect, the Company Board Recommendation, Recommendation (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives a Superior Proposal (or there occurs an Intervening Event, the Company Board any committee thereof) may effect a Company Board Recommendation Change provided that if, in response to events, facts or circumstances other than an Acquisition Proposal or Superior Proposal, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not not, in and of itself, constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following beginning at 5:00 p.m. Pacific Time on the day of delivery by the Company to Parent of such Recommendation Change NoticeNotice and ending four (4) Business Days later at 5:00 p.m. Pacific Time (it being understood that any amendment or update of such Recommendation Change Notice shall be considered a new Recommendation Change Notice and shall start a new four (4) Business Day period); and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parentany proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change is still necessary would continue to reasonably be expected to result in light a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC ReportsStockholders.
(cb) Nothing in this Agreement shall prohibit the Company Board (or any committee thereof) from (i) taking and disclosing to the Company Stockholders a position contemplated by statement in accordance with Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that with respect to matters other than Parent, Acquisition Sub, this Agreement, or the transactions contemplated hereby, if the Company Board (or any committee thereof) determines in good faith (after consultation with based upon the written opinion of its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverfor the purposes of clarity, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless will be subject to the Board terms and conditions of Directors publicly reaffirms this Agreement. Nothing in this Section 6.3(b) requiring an opinion of the Company Board Recommendation within five Business Days Company’s counsel shall be inferred as giving rise to a duty of such disclosurecounsel to any Person other than the Company, nor shall any such opinion, if delivered, be considered a third-party legal opinion within the generally accepted meaning of such term.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, qualify or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, qualify or modify in Table of Contents a manner adverse to Parent, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable recommend, or publicly propose to approve, endorse or recommend, an Acquisition Proposal, (iii) fail to include the adoption of any Acquisition Proposal Company Board Recommendation in the Proxy Statement, (it being understood that, only with respect to iv) if a tender offer or exchange offeroffer that constitutes an Acquisition Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company Stockholders (including, for these purposes, by disclosing that it is taking a neutral position or no position (other than in with respect to the acceptance of such tender offer or exchange offer by the Company Stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided that a customary “stop, look and listen” communication made in compliance with by the Company Board pursuant to Rule 14d-9(f14d–9(f) promulgated under the Exchange ActAct or a statement that the Company Board has received and is currently evaluating such Acquisition Proposal shall not be prohibited or be deemed to be a Company Board Recommendation Change) within ten (10) Business Days after the commencement thereof or such fewer number of days as remain prior to the Company Stockholder Meeting, or (v) fail to publicly reaffirm the Company Board Recommendation following any Acquisition Proposal having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided that Parent may not make such request more than one time with respect to any Acquisition Proposal unless there shall be considered a breach have been an additional public announcement by the Company with respect to such Acquisition Proposal (each of this clause clauses (i), (ii), (iii)), or (iv) resolveand (v), agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timereceipt of the Requisite Stockholder Approval, (1) in connection with an Intervening Event or (2) if the Company Board receives an Acquisition Proposal that constitutes a Superior Proposal or there occurs an Intervening EventProposal, the Company Board may (x) in the case of clause (1) effect a Company Board Recommendation Change provided that or (y) in the case of clause (2), effect a Board Recommendation Change and authorize the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Superior Proposal, in each case, if and only if, prior to effecting such Company Board Recommendation Change and/or authorizing the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Superior Proposal:
(i) the Company Board determines in good faith (faith, after consultation with its outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of inconsistent with its fiduciary duties to under Massachusetts Law;
(ii) the Company Stockholders under applicable Delaware Lawshall have notified Parent in writing at least five (5) Business Days before taking such action of its intention to do so, and shall have specified the reasons therefor, including (A) if such notice is made in connection with an Intervening Event, a reasonable description of the case of Intervening Event and (B) if such notice is made in connection with a Superior Proposal, the Company Board approves or recommends terms and conditions of, and the identity of the Person making such Superior Proposal; , and contemporaneously with such notice furnished a copy (iiif any) of the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any proposed agreement under which such Superior Proposal is proposed to be consummated and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Eventother material transaction documents, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) including any financing commitment letters (it being understood and agreed that, with respect to any amendment to the financial terms or other material terms of such Superior Proposal, the Company shall have provided Parent a new written notice and a new additional period of three (3) Business Days in respect of each such amendment); it being agreed that any of the Recommendation Change Notice foregoing notice and any amendment to update such notice and the determination to deliver such notice, or update or amend public disclosure with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); ;
(iii) during such five (5) Business Day period or, if applicable, such additional three (3) Business Day period(s), prior to its effecting a Company Board Recommendation Change or terminating this Agreement, if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives in good faith regarding any proposed modifications revisions to the terms and conditions of the transactions contemplated by this Agreement during the three (3) Business Day period following delivery proposed by the Company to Parent of such Recommendation Change Notice; and Parent;
(iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company offer to alter modify the terms or and conditions of this Agreement during such five (5) Business Day period or, if applicable, such additional three (3) Business Day periodperiod(s), the Company Board Board, after expiration of the applicable period and after taking into Table of Contents consideration the adjusted terms and conditions of this Agreement as proposed by Parent, shall have determined in good faith (after consultation with its outside legal counsel)counsel and financial advisor) that (A) such Superior Proposal continued to be a Superior Proposal, after considering and that the terms of such proposal by Parent, that failure to make a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply terminate this Agreement would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Massachusetts Law or (B) in the case of an Intervening Event, the failure to make a Company Board Recommendation Change would be inconsistent with its fiduciary duties under Massachusetts Law. Any material amendment or modification ; and
(v) in the case of the Company terminating this Agreement to any enter into a definitive agreement with respect to a Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Proposal, the Company shall keep confidential any proposals made by Parent to revise have paid, or caused the terms of this Agreementpayment of, other than the Termination Fee in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsaccordance with Section 8.3(b)(iii).
(c) Nothing in this Agreement shall prohibit the Company Board and/or any authorized committee thereof from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, Act and (ii) making any disclosure to the Company Stockholders that the Company Board and/or any committee thereof determines in good faith (after consultation with from its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Massachusetts Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, provided that any such disclosure will (other than a “stop, look and listen” communication or any substantially similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Board Recommendation Change (including for purposes of Section 8.1(f)) unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days expressly reaffirms its recommendation to the Company Stockholders in favor of the approval of this Agreement and the Merger in such disclosure.
Appears in 1 contract
Samples: Merger Agreement (Xcerra Corp)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)5.3, the Company Board (or a committee thereof) shall recommend that effect the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Subject to Section 5.3(c), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend amend, modify or modify qualify in a manner materially adverse to ParentParent or Merger Sub, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner materially adverse to ParentParent or Merger Sub, the Company Board Recommendation, (ii) publicly approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any if an Acquisition Proposal (it being understood that, only with respect to structured as a tender or exchange offer is publicly announced or publicly commenced, fail to publicly recommend against acceptance of such tender or exchange offer by the Company Stockholders within ten (10) Business Days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act; (iv) if an Acquisition Proposal is publicly announced (other than by the commencement of a tender or exchange offer) and the Company Board fails to issue a public press release within ten (10) Business Days of such public announcement providing that the Company Board reaffirms the Company Board Recommendation); or (v) fail to include the Company Board Recommendation in the Proxy Statement (each of clauses (i), taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause ii), (iii)), or (iv) resolveand (v), agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time after the date of this Agreement and prior to the Appointment Timereceipt of the Required Company Stockholder Approval, the Company Board receives (or a Superior committee thereof) may (i) in response to the receipt of (x) an Acquisition Proposal received after the date hereof that did not result from a Willful Breach of Section 5.2, or there occurs (y) the occurrence an Intervening Event, the Company Board may effect a Company Board Recommendation Change Change, or (ii) in response to the receipt of an Acquisition Proposal received after the date hereof that did not result from a Willful Breach of Section 5.2, enter into a definitive agreement with respect to such applicable Acquisition Proposal and terminate this Agreement pursuant to Section 8.1(c)(ii), provided that (iA) the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to effect take such action would be inconsistent with its fiduciary duties under applicable Law, (B) in the case of receipt of an Acquisition Proposal, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal, (C) the Company provides written notice to Parent at least four (4) Business Days prior to effecting a Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(c)(ii) of its intent to take such action, specifying the reasons therefor (a “Change of Recommendation Notice”), and (D) prior to effecting such Company Board Recommendation Change or terminating this Agreement pursuant to Section 8.1(c)(ii), the Company shall, and shall use commercially reasonable efforts to cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such four (4) Business Day period to make such adjustments in the terms and conditions of this Agreement as would reasonably obviate the basis for a Company Board Recommendation Change or the termination of this Agreement pursuant to Section 8.1(c)(ii) and (E) no earlier than the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor(s) and outside legal counsel), after considering any proposed amendments to the terms and conditions of this Agreement agreed to in writing by Parent during such four (4) Business Day period, that the failure to take such action would be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware LawLaw (and, and in the case of receipt of such Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal). Following delivery of a Change of Recommendation Notice in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment material change to the financial terms (including any change to the amount or form of consideration payable) or other material revision to the material terms or conditions of such Acquisition Proposal, the Company shall provide a new Change of Recommendation Notice to Parent, and any Company Board Recommendation Change or termination of this Agreement and pursuant to Section 8.1(c)(ii) following delivery of such new Change of Recommendation Notice shall again be subject to clause (C) of the extent required immediately preceding sentence, except that references to four (4) Business Days shall be deemed to be disclosed in any Company SEC Reportstwo (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board (or a committee thereof) from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.7, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “Company Board Recommendation”).
(b) at the Company Stockholder Meeting. Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend or modify modify, in a manner adverse to ParentParent and/or approval of the Merger Proposal, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood thatrecommend, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take approve, endorse or recommend any such Acquisition Proposal or Acquisition Agreement (any of the actions (each such foregoing action or failure referred to act in the preceding clauses (ix) through and (ivy) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in terms of this Agreement, ifSection 6.7, at any time prior to receipt of the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Merger Approval, the Company Board may effect a Company Board Recommendation Change provided that and, in the case of Section 6.7(b)(ii), the Company may terminate this Agreement in accordance with Section 8.1(f), if and only if either:
(i) a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement, it being understood and hereby agreed that the Company Board may only effect a Company Board Recommendation Change in response to or in connection with an Acquisition Proposal pursuant to and in accordance with Section 6.7(b)(ii) below) that was not known by the Company Board as of or at any time prior to the date of this Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”) shall have occurred and be continuing and prior to effecting such Company Board Recommendation Change:
(A) the Company Board shall have reasonably determined in good faith (after consultation with the Company’s outside legal counsel) that, in light of such Intervening Event, the failure of the Company Board to effect such Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under Delaware Law;
(B) the Company Board shall have given Parent at least five (5) Business Days prior written notice that the Company Board intends to take such action and the opportunity to meet with the Company Board and the Company’s financial advisors and outside legal counsel at such times as Parent may reasonably request for the purpose of enabling Parent and the Company to discuss in good faith (x) the Company Board’s basis and rationale for proposing to effect such Company Board Recommendation Change, and/or (y) possible modifications of the terms and conditions of this Agreement in such a manner that would obviate the need for the Company Board to effect such Company Board Recommendation Change in response to the Intervening Event; and
(C) after the foregoing five (5) Business Day period and, if requested by Parent, meetings with Parent and its financial advisors and legal counsel during such five (5) Business Day period, the Company Board reasonably determines in good faith (after consultation with the Company’s outside legal counsel) ), that, in light of such Intervening Event and any modifications to the terms and conditions of this Agreement that Parent may propose, the failure to effect such a Company Board Recommendation Change would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; or
(ii) the Company has notified Parent Board shall have received a bona fide, unsolicited Acquisition Proposal in writing after the date hereof, other than as a result of a breach or violation of the terms of Section 6.1, which has not been withdrawn, and prior to (and in connection with) effecting such Company Board Recommendation Change or terminating this Agreement in accordance with Section 8.1(f), as applicable:
(A) none of the Company, any of its Subsidiaries or any directors, officers or other employees, controlled Affiliates, or any investment bankers, attorneys or other advisors, representatives or agents of the Company or any of its Subsidiaries, shall have breached or violated in any material respect the terms of Section 6.1 in connection with such Acquisition Proposal or in connection with any other Acquisition Proposal made or submitted by any Person (or any Affiliate or agent thereof) making such Acquisition Proposal;
(B) the Company Board shall have reasonably determined in good faith (after consultation with Paragon or another financial advisor of nationally recognized standing and the Company’s outside legal counsel) that it such Acquisition Proposal constitutes a Superior Proposal and shall have further reasonably determined in good faith (after consultation with the Company’s outside legal counsel) that, in light of such Superior Proposal, the failure to effect a Company Board Recommendation Change or to terminate this Agreement in accordance with Section 8.1(f) in response to such Superior Proposal, as applicable, would reasonably be expected to result in a breach of its fiduciary duties under Delaware Law;
(C) the Company Board shall have given Parent at least five (5) Business Days prior written notice (1) of the identity of the Person(s) making such Superior Proposal and all of the material terms and conditions of such Superior Proposal (and if such Superior Proposal is in written form, a copy of such Superior Proposal and all related agreements, commitment letters and other material documents provided or otherwise furnished by the Person(s) making such Superior Proposal in connection therewith), and (2) that the Company Board intends to effect a Company Board Recommendation Change, describing Change or terminate this Agreement in reasonable detail the reasons, including the material terms and conditions of any accordance with Section 8.1(f) in response to such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as opportunity to meet with the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that and the Recommendation Change Notice shall not constitute a Company Board Recommendation Change Company’s financial advisors and outside legal counsel at such times as Parent may reasonably request for purposes the purpose of this Agreement); (iii) if requested by Parent, enabling Parent and the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives such Superior Proposal, this Agreement and the terms and conditions hereof, and any proposed modifications to of the terms and conditions of this Agreement during that Parent may propose in response thereto; and
(D) after the three foregoing five (35) Business Day period following delivery and, if requested by the Company to Parent, meetings with Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement its financial advisors and legal counsel during such three five (35) Business Day period, the Company Board shall have reasonably determined in good faith (after consultation with Paragon or another financial advisor of nationally recognized standing and the Company’s outside legal counsel)) that such Acquisition Proposal continues to constitute a Superior Proposal, and shall have further reasonably determined in good faith (after considering consultation with the terms of such proposal by ParentCompany’s outside legal counsel) that, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal and after good faith consideration of all proposals (whether or Intervening Event not binding) by Parent, the failure to effect a Company Board Recommendation Change or to terminate this Agreement in order accordance with Section 8.1(f), as applicable, would reasonably be expected to comply with result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders stockholders a position contemplated by Rule 14e-2(a14e-
(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of any statement or other disclosure made by the Company set forth in Sections 6.2 Board pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act shall be subject to the terms and 6.3conditions of this Agreement, including the provisions of Article VIII; and provided, provided further, that any such statement or disclosure will (other than a “stop, look and listen communication” of the type contemplated by Rule 14d-9(f) under the Exchange Act, and within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless if the Company Board of Directors does not expressly publicly reaffirms reaffirm the Company Board Recommendation within five Business Days of in connection with such statement or disclosure.
(d) Nothing set forth in this Section 6.7 shall (i) limit the obligation of the Company to establish a record date for, call, give notice of, convene and hold the Company Stockholder Meeting, (ii) relieve the Company of its obligation to solicit proxies for the Company Stockholder Meeting and submit to a vote of its stockholders the Merger Proposal at the Company Stockholder Meeting, or (iii) except as required by applicable Law, permit the Company to submit for a vote of its stockholders at or prior to the Company Stockholder Meeting any matter other than the Merger Proposal and the Option Exchange Proposal.
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Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held, has made the Company Board Recommendation. Subject to Section 6.1(b), the terms Company hereby consents to the inclusion of Section 6.3(ba description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Board of Directors of the Company nor any committee thereof shall (i)(A) and Section 6.3(cwithdraw (or modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw (or modify in a manner adverse to Parent or Purchaser), the Company Board shall Recommendation or (B) approve, recommend that or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal, (C) fail to include the holders of Company Shares accept Board Recommendation in the Offer, tender their Company Shares Schedule 14D-9 (any action described in this clause (i) being referred to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the as a “Company Board Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company or any Acquired Corporation to execute or enter into any Contract with respect to any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to Purchaser accepting, for the Appointment first time, for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that ”):
(i) if the Company Board determines in good faith has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 5.3) from any Person that has not been withdrawn and after consultation with outside legal counselcounsel and financial advisors, the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) that the failure to effect Company’s Board of Directors may make a Company Board Recommendation Adverse Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware LawRecommendation, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (iiy) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.terminate this
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Company Board Recommendation. (a) The Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held, has made the Company Board Recommendation. Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors of the Company nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to approve, recommend or declare advisable the adoption of advisable, any Acquisition Proposal (it any action described in this clause (i) being understood thatreferred to as a “Company Adverse Change Recommendation”) or (ii) approve, only with respect recommend or declare advisable, or propose to a tender offer approve, recommend or exchange offerdeclare advisable, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under allow the Exchange Act) Company to execute or enter into any Contract with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (ivother than an Acceptable Confidentiality Agreement).
(b) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to Purchaser accepting, for the Appointment first time, for payment and paying for such number of Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition (the “Offer Acceptance Time, ”) the Company Company’s Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board of Directors may effect make a Company Board Adverse Change Recommendation Change provided that if:
(i) if the Company Board determines in good faith (has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Company’s Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Company’s Board of Directors may make a Company Adverse Change Recommendation, or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, in each case if and only if: (A) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements ; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of or terminate this Agreement pursuant to Section 8.1(f) at least four (4) business days prior to making any such Superior Proposal and a copy of the final form of any related agreements Company Adverse Change Recommendation or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change termination (a “Recommendation Change Determination Notice”) (it being understood that the Recommendation Change Notice which notice shall not constitute a Company Board Recommendation Adverse Change for purposes of this AgreementRecommendation); (iiiC) if requested by Parent, (1) the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company provided to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations identity of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.offeror
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Samples: Agreement and Plan of Merger (Ambit Biosciences Corp)
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.5(b) and Section 6.3(c7.5(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position each of clauses (other than in a communication made in compliance with Rule 14d-9(fx) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)y), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that if (i) the Company Board determines shall have determined in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has shall have notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following beginning at 5:00 p.m. Pacific Time on the day of delivery by the Company to Parent of such Recommendation Change NoticeNotice and ending three (3) Business Days later at 5:00 p.m. Pacific Time (it being understood and hereby agreed that such three (3) Business Day period may be the same three (3) Business Day period contemplated by Section 9.1(e)); and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodperiod a written, binding and irrevocable offer to modify the terms of this Agreement (which is set forth in a definitive written amendment to this Agreement executed by Parent and Acquisition Sub and delivered to the Company), the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal offer by Parent, that the failure to effect a Company Board Recommendation Change is would still necessary reasonably be expected to result in light a breach of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosurethis Agreement, including the provisions of Article IX.
Appears in 1 contract
Company Board Recommendation. (a) Subject to Unless the terms Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, unless the Board of Directors has made a Company Adverse Recommendation Change in accordance with Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) fail to include the Company Board Recommendation in the Schedule 14D-9 or the Merger Proxy Statement or (C) adopt, approve, recommend, endorse recommend or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))advisable, or (iv) resolve, agree or publicly propose to take adopt, approve, recommend or declare advisable, any such actions Acquisition Proposal (each such foregoing any action or failure to act described in clauses this clause (i) through (iv) being referred to herein as an a “Company Board Adverse Recommendation Change”). ; or (ii) adopt, approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal, or that requires, or is reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ifSection 6.1(a), at any time prior to the Appointment Offer Acceptance Time or, if Parent has made a Meeting Election, the Cut-off Time:
(i) if any Acquired Corporation has received a bona fide written Acquisition Proposal that was made or renewed on or after the date of this Agreement from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Recommendation Change, or (y) provided that no Acquired Corporation has breached Section 5.3 or Section 6.1, the Company Board receives may terminate this Agreement pursuant to Section 8.1(f) to enter into a Specified Agreement with respect to such Superior Proposal or there occurs an Intervening EventOffer, the Company Board may effect a Company Board Recommendation Change provided that in each case, if and only if: (iA) the Company Board of Directors determines in good faith (faith, after consultation with the Company’s outside legal counsel) , that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements; (iiB) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made given Parent prior written notice of its Representatives available intention to discuss and negotiate consider making a Company Adverse Recommendation Change or terminating this Agreement pursuant to Section 8.1(f) at least four (4) business days prior to making any such Company Adverse Recommendation Change or termination (a “Determination Notice”) and, to the extent desired by Parent, during such four (4)-business day period shall have negotiated in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification respect to any Superior Proposal will be deemed revisions to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and or another proposal to the extent required proposed by Parent so that such Acquisition Proposal would cease to be disclosed in any Company SEC Reports.
constitute a Superior Offer; and (cC) Nothing in this Agreement shall prohibit (1) the Company Board from (i) taking and disclosing shall have provided to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying Parent information with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure respect to the Company Stockholders that the Company Board determines such Acquisition Proposal in good faith (after consultation accordance with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.5.3(d),
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Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.1, the Company Board shall recommend that make the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend withdraw or rescind (or modify or qualify in a manner adverse to ParentParent or Merger Sub), or publicly propose to withhold, withdraw, amend withdraw or rescind (or modify or qualify in a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation, (iiiii) approve, adopt, approve, recommenddeclare advisable, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood thatwhether publicly or not), only with respect or resolve to take any such action, or (iii) publicly make any recommendation in favor of a tender offer or exchange offer, taking a neutral position or no position offer (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)Offer), or (iv) resolve, agree or publicly propose fail to take any such actions include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company Stockholders (each such foregoing action or failure to act in of clauses (i) through (iv) being referred to herein as an ), a “Company Board Recommendation Change”). ; provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, the Company Board receives may, (i) in response to the receipt of a Superior Proposal or there occurs an Intervening Event, and subject to compliance in all material respects with the Company Board may other provisions of this Section 6.1 and Section 5.3, effect a Company Board Recommendation Change or (ii) in response to the receipt of a Superior Proposal, and subject to compliance in all material respects with the other provisions of this Section 6.1 and Section 5.3, (x) effect a Company Board Recommendation Change or (y) terminate this Agreement pursuant to Section 8.1(f); provided in each case that (iA) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect a Company Board Recommendation Change take such action would be reasonably be expected likely to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and (B) in the case of a Superior Proposal, the Company Board approves or recommends such determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) that the applicable Acquisition Proposal constitutes a Superior Proposal; , (iiC) the Company has notified provides written notice to Parent in writing that it intends at least three (3) Business Days prior to effect effecting a Company Board Recommendation Change, describing in reasonable detail or if permitted, terminating this Agreement pursuant to Section 8.1(f) of its intent to take such action, specifying the reasonsreasons therefor (a “Notice of Intended Recommendation Change”), including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for (D) prior to effecting such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of or, if permitted, terminating this AgreementAgreement pursuant to Section 8.1(f); (iii) if requested by Parent, the Company shall, and shall have made cause its Representatives available to discuss and to, negotiate with Parent in good faith with Parent’s Representatives any proposed modifications (to the terms and conditions of this Agreement during the three (3extent Parent desires to negotiate) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined period to make such adjustments in good faith (after consultation with outside legal counsel), after considering the terms and conditions of such proposal by Parent, that this Agreement as would obviate the basis for a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes termination of this Agreement pursuant to Section 6.38.1(f). The Company shall keep confidential any proposals made by Parent to revise the terms Following delivery of this Agreementa Notice of Intended Recommendation Change, other than in the event of any amendment change to the financial terms (including any change to the amount or form of consideration payable) or other material revision to the terms or conditions of an applicable Superior Proposal, the Company shall provide a new Notice of Intended Recommendation Change to Parent, and any Company Board Recommendation Change or termination of this Agreement and pursuant to Section 8.1(f) following delivery of such new Notice of Intended Recommendation Change shall again be subject to clause (D) of the extent required to be disclosed in any Company SEC Reportsimmediately preceding sentence for a period of two (2) Business Days.
(cd) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be reasonably be expected likely to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, howeverin the case of each of clauses (i) and (ii), that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change may be made unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureshall have first complied with its obligations under Section 6.1(c).
Appears in 1 contract
Samples: Merger Agreement (Relypsa Inc)
Company Board Recommendation. (a) Subject to the terms of this Section 6.3(b) and Section 6.3(c)6.7, the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by stockholders adopt this Agreement in accordance with the applicable provisions of Delaware Law, adopt this Agreement Law (the “"Company Board Recommendation”).
(b") at the Company Stockholder Meeting. Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend or modify in a manner adverse to Parentmodify, or publicly propose to withhold, withdraw, amend or modify modify, in a manner adverse to ParentParent and/or approval of the Merger Proposal, the Company Board Recommendation, Recommendation or (iiiy) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood thatrecommend, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take approve, endorse or recommend any such Acquisition Proposal or Acquisition Agreement (any of the actions (each such foregoing action or failure referred to act in the preceding clauses (ix) through and (ivy) being referred to herein as an “a "Company Board Recommendation Change”"). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in terms of this Agreement, ifSection 6.7, at any time prior to receipt of the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening EventRequisite Merger Approval, the Company Board may effect a Company Board Recommendation Change provided that and, in the case of Section 6.7(b)(ii), the Company may terminate this Agreement in accordance with Section 8.1(f), if and only if either:
(i) a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement, it being understood and hereby agreed that the Company Board may only effect a Company Board Recommendation Change in response to or in connection with an Acquisition Proposal pursuant to and in accordance with Section 6.7(b)(ii) below) that was not known by the Company Board as of or at any time prior to the date of this Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an "Intervening Event") shall have occurred and be continuing and prior to effecting such Company Board Recommendation Change:
(A) the Company Board shall have reasonably determined in good faith (after consultation with the Company's outside legal counsel) that, in light of such Intervening Event, the failure of the Company Board to effect such Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under Delaware Law;
(B) the Company Board shall have given Parent at least five (5) Business Days prior written notice that the Company Board intends to take such action and the opportunity to meet with the Company Board and the Company's financial advisors and outside legal counsel at such times as Parent may reasonably request for the purpose of enabling Parent and the Company to discuss in good faith (x) the Company Board's basis and rationale for proposing to effect such Company Board Recommendation Change, and/or (y) possible modifications of the terms and conditions of this Agreement in such a manner that would obviate the need for the Company Board to effect such Company Board Recommendation Change in response to the Intervening Event; and
(C) after the foregoing five (5) Business Day period and, if requested by Parent, meetings with Parent and its financial advisors and legal counsel during such five (5) Business Day period, the Company Board reasonably determines in good faith (after consultation with the Company's outside legal counsel) ), that, in light of such Intervening Event and any modifications to the terms and conditions of this Agreement that Parent may propose, the failure to effect such a Company Board Recommendation Change would reasonably be expected to be result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; or
(ii) the Company has notified Parent Board shall have received a bona fide, unsolicited Acquisition Proposal in writing after the date hereof, other than as a result of a breach or violation of the terms of Section 6.1, which has not been withdrawn, and prior to (and in connection with) effecting such Company Board Recommendation Change or terminating this Agreement in accordance with Section 8.1(f), as applicable:
(A) none of the Company, any of its Subsidiaries or any directors, officers or other employees, controlled Affiliates, or any investment bankers, attorneys or other advisors, representatives or agents of the Company or any of its Subsidiaries, shall have breached or violated in any material respect the terms of Section 6.1 in connection with such Acquisition Proposal or in connection with any other Acquisition Proposal made or submitted by any Person (or any Affiliate or agent thereof) making such Acquisition Proposal;
(B) the Company Board shall have reasonably determined in good faith (after consultation with Paragon or another financial advisor of nationally recognized standing and the Company's outside legal counsel) that it such Acquisition Proposal constitutes a Superior Proposal and shall have further reasonably determined in good faith (after consultation with the Company's outside legal counsel) that, in light of such Superior Proposal, the failure to effect a Company Board Recommendation Change or to terminate this Agreement in accordance with Section 8.1(f) in response to such Superior Proposal, as applicable, would reasonably be expected to result in a breach of its fiduciary duties under Delaware Law;
(C) the Company Board shall have given Parent at least five (5) Business Days prior written notice (1) of the identity of the Person(s) making such Superior Proposal and all of the material terms and conditions of such Superior Proposal (and if such Superior Proposal is in written form, a copy of such Superior Proposal and all related agreements, commitment letters and other material documents provided or otherwise furnished by the Person(s) making such Superior Proposal in connection therewith), and (2) that the Company Board intends to effect a Company Board Recommendation Change, describing Change or terminate this Agreement in reasonable detail the reasons, including the material terms and conditions of any accordance with Section 8.1(f) in response to such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as opportunity to meet with the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that and the Recommendation Change Notice shall not constitute a Company Board Recommendation Change Company's financial advisors and outside legal counsel at such times as Parent may reasonably request for purposes the purpose of this Agreement); (iii) if requested by Parent, enabling Parent and the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives such Superior Proposal, this Agreement and the terms and conditions hereof, and any proposed modifications to of the terms and conditions of this Agreement during that Parent may propose in response thereto; and
(D) after the three foregoing five (35) Business Day period following delivery and, if requested by the Company to Parent, meetings with Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement its financial advisors and legal counsel during such three five (35) Business Day period, the Company Board shall have reasonably determined in good faith (after consultation with Paragon or another financial advisor of nationally recognized standing and the Company's outside legal counsel)) that such Acquisition Proposal continues to constitute a Superior Proposal, and shall have further reasonably determined in good faith (after considering consultation with the terms of such proposal by ParentCompany's outside legal counsel) that, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal and after good faith consideration of all proposals (whether or Intervening Event not binding) by Parent, the failure to effect a Company Board Recommendation Change or to terminate this Agreement in order accordance with Section 8.1(f), as applicable, would reasonably be expected to comply with result in a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of any statement or other disclosure made by the Company set forth in Sections 6.2 Board pursuant to Rule 14e-2(a) under the Exchange Act or Rule 14d-9 under the Exchange Act shall be subject to the terms and 6.3conditions of this Agreement, including the provisions of Article VIII; and provided, provided further, that any such statement or disclosure will (other than a "stop, look and listen communication" of the type contemplated by Rule 14d-9(f) under the Exchange Act, and within the time period contemplated by Rule 14d-9(f)(3)) shall be deemed to be a Company Board Recommendation Change unless if the Company Board of Directors does not expressly publicly reaffirms reaffirm the Company Board Recommendation within five Business Days of in connection with such statement or disclosure.
(d) Nothing set forth in this Section 6.7 shall (i) limit the obligation of the Company to establish a record date for, call, give notice of, convene and hold the Company Stockholder Meeting, (ii) relieve the Company of its obligation to solicit proxies for the Company Stockholder Meeting and submit to a vote of its stockholders the Merger Proposal at the Company Stockholder Meeting, or (iii) except as required by applicable Law, permit the Company to submit for a vote of its stockholders at or prior to the Company Stockholder Meeting any matter other than the Merger Proposal and the Option Exchange Proposal.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b7.5(b) and Section 6.3(c7.5(c), the Company Board shall recommend that the holders of Company Shares accept the Offer, Offer and tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (iix) withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend amend, modify or modify qualify in a manner adverse to Parent, the Company Board Recommendation, Recommendation or (iiiy) adopt, publicly approve, recommend, endorse or otherwise declare advisable the adoption of any recommend an Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position each of clauses (other than in a communication made in compliance with Rule 14d-9(fx) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause and (iii)y), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an a “Company Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Acceptance Time, in response to the Company Board receives receipt of a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that or terminate this Agreement pursuant to Section 9.1(e) if all of the following conditions in clauses (i) through (iv) are met:
(i) A Superior Proposal with respect to the Company has been made and has not been withdrawn or an Intervening Event has occurred;
(ii) The Company shall have (A) delivered to Parent written notice (a “Change of Recommendation Notice”) at least three (3) Business Days prior to effecting such Company Board determines Recommendation Change, which notice shall state expressly (x) that it has received a Superior Proposal or an Intervening Event has occurred, (y) in the case of a Superior Proposal, the material terms and conditions of such Superior Proposal and the identity of the Person or group (as defined under Section 13(d) of the Exchange Act) making the Superior Proposal, or, in the case of an Intervening Event, the material facts and circumstances related such Intervening Event, and (z) that it intends to terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change, and (B) in the case of a Superior Proposal, provided to Parent a copy of all written proposals provided by such Person or group in connection with such Superior Proposal (it being understood and agreed that delivery of a Change of Recommendation Notice shall not, by itself, be deemed to be a Company Board Recommendation Change);
(iii) The Company Board has concluded in good faith (faith, after consultation with outside legal counsel) , that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; and
(iiiv) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such The Superior Proposal and a copy or Intervening Event that is the subject of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change did not result from a material breach by the Company of any of the provisions set forth in Section 6.2 or this Section 7.5. During such three (a “3) Business Days after delivering the Change of Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available provide Parent a reasonable opportunity to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications make such adjustments to the terms and conditions of this Agreement during (the three (3“Modified Terms”), and shall consider in good faith such Modified Terms. In the event Parent proposes Modified Terms and notwithstanding anything in this Section 7.5(b) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodcontrary, the Company Board shall have determined may not terminate this Agreement pursuant to Section 9.1(e) or effect a Company Board Recommendation Change unless and until the Company Board concludes in good faith (faith, after considering the Modified Terms and consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to terminate this Agreement pursuant to Section 9.1(e) or to effect a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order would reasonably be expected to comply be inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law; providedprovided that, howeverin either such case, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms statement(s) or disclosures made by the Company Board Recommendation within five Business Days will be subject to the terms and conditions of such disclosurethis Agreement.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c5.04(c), the Company Board shall recommend that (i) make the holders of Company Shares accept Recommendation and (ii) include the Offer, tender their Company Shares to Acquisition Sub pursuant to Recommendation in the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”)Proxy Statement.
(b) Neither Subject to Section 5.04(c), neither the Company Board nor any committee thereof shall (i) fail withdraw, qualify, modify, change or amend in any manner adverse to make Parent or Merger Sub, the Company Board Recommendation to the holders of the Company SharesRecommendation, (ii) withhold, withdraw, amend approve or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendationrecommend any Acquisition Proposal, (iii) adoptexcept in connection with a termination of this Agreement pursuant to Section 7.01(f), approve, recommend, endorse permit the Company or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect Company Subsidiary to a tender offer or exchange offer, taking a neutral position or no position enter into any Contract (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Actconfidentiality agreement as contemplated by Section 5.03(a)) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))Proposal, or (iv) resolveexcept in connection with a termination of this Agreement pursuant to Section 7.01(f), agree resolve or publicly propose to take any such actions (each such foregoing action or failure to act described in clauses (i) through (iviii) (each of the foregoing actions described in clauses (i) through (iii) being referred to herein as an a “Company Board Recommendation ChangeChange in Recommendation”). .
(c) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Change in Recommendation Change provided that at any time before receipt of the Company Stockholder Approval, if (i) (A) the Company Board has received an Acquisition Proposal (that has not been withdrawn) that constitutes a Superior Proposal, (B) the Company Board determines in good faith (after consultation with its outside legal counselcounsel and financial advisor and after considering in good faith any counter-offer or proposal made by Parent during the five day period contemplated by clause (D) below) that the failure to effect a Company Board Change in Recommendation Change would reasonably be expected to be a breach in light of such Superior Proposal is inconsistent with its fiduciary duties obligations to the stockholders of the Company Stockholders under applicable Delaware LawLegal Requirements, and (C) at least five days before such Company Change in the case of a Superior ProposalRecommendation, the Company Board approves or recommends shall have provided to Parent a written notice (a “Notice of Recommendation Change”) of its intention to make such Superior Proposal; Company Change in Recommendation (ii) the Company has notified Parent which notice shall not be deemed to be, in writing that it intends to effect and of itself, a Company Board Recommendation ChangeChange in Recommendation), describing in reasonable detail the reasons, including specifying the material terms and conditions of any such Superior Proposal, including a copy of such Superior Proposal and identifying the Person making such Superior Proposal, (D) during the five day period following Parent’s receipt of a copy Notice of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by ParentChange, the Company shall have made given Parent the opportunity to meet with the Company and its Representatives available to discuss Representatives, and negotiate at Parent’s request, shall have negotiated in good faith with Parent’s Representatives any proposed modifications regarding the terms of possible revisions to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; Agreement, and (ivE) if Parent shall not, within five days following Parent’s receipt of a Notice of Recommendation Change, have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, made an offer that the Company Board shall have determined determines in good faith (after consultation with its outside legal counsel), after considering counsel and financial advisor) to be at least as favorable to the terms stockholders of the Company as such proposal by Parent, Superior Proposal; or (ii) other than in connection with a Superior Proposal (it being understood and hereby agreed that the Company Board shall not effect a Company Board Change in Recommendation Change is still necessary in light of such connection with a Superior Proposal or Intervening Event in order to comply with its fiduciary duties other than pursuant to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes immediately preceding clause (i) of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement5.04(c)), other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(cA) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be effect a breach of Company Change in Recommendation is inconsistent with its fiduciary duties obligations to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations stockholders of the Company set forth under applicable Legal Requirements, (B) at least five days before such Company Change in Sections 6.2 and 6.3; and providedRecommendation, further, that any the Company shall have provided to Parent a Notice of Recommendation Change of its intention to make such disclosure will Company Change in Recommendation (which notice shall not be deemed to be be, in and of itself a Company Board Change in Recommendation), specifying in reasonable detail the circumstances for such proposed Company Change in Recommendation, and (C) during the five day period following Parent’s receipt of a Notice of Recommendation Change unless Change, the Board Company shall have given Parent the opportunity to meet with the Company and its Representatives, and at Parent’s request, shall have negotiated in good faith regarding the terms of Directors publicly reaffirms possible revisions to the terms of this Agreement.
(d) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act or (ii) making any disclosures to any stockholder of the Company that the Company Board determines in good faith (after consultation with its outside legal counsel) that the Company Board is required to make in order to comply with its fiduciary obligations to the stockholders of the Company under applicable Legal Requirements or with any other applicable Legal Requirements. In addition, it is understood and agreed that, for purposes of this Section 5.04, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto and contains a “stop-look-and-listen communication” shall not be deemed a Company Change in Recommendation.
(e) Notwithstanding anything to the contrary contained in this Agreement, (i) the obligation of the Company to call, give notice of, convene and hold the Special Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal or by any Company Change in Recommendation within five Business Days unless the Agreement has been terminated in accordance with Section 7.01, and (ii) the Company shall not submit to the vote of its stockholders any Acquisition Proposal, unless and until this Agreement is terminated in accordance with its terms.
(f) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Legal Requirement) or otherwise cause such disclosurerestrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement pursuant to Section 7.01(f).
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, Recommendation or (iiiB) adopt, approve, recommend, endorse recommend or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii))advisable, or (iv) resolve, agree or publicly propose to take adopt, approve, recommend or declare advisable, any such actions Acquisition Proposal (each such foregoing any action or failure to act described in clauses this clause (i) through (iv) being referred to herein as an a “Company Board Recommendation ChangeAdverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement). .
(b) Notwithstanding the foregoing or anything to the contrary set forth contained in this Agreement, if, at any time prior to the Appointment Offer Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that :
(i) the Company Board determines in good faith (if any Acquired Corporation has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Board of Directors may make a Company Adverse Change Recommendation, or (y) provided that such Acquisition Proposal did not arise out of a material breach of Section 5.3, the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to effect a Company Board Recommendation Change do so would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior ProposalLegal Requirements; (iiB) the Company has notified shall have given Parent in writing that it intends prior written notice of its intention to effect consider making a Company Board Adverse Change Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of or terminating this Agreement pursuant to Section 8.1(e) at least three (3) business days prior to making any such Superior Proposal and a copy of the final form of any related agreements Company Adverse Change Recommendation or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change termination (a “Recommendation Change Determination Notice”) (it being understood that the Recommendation Change Notice which notice shall not constitute a Company Board Adverse Change Recommendation Change for purposes of this Agreement); (iiior termination) and, if requested desired by Parent, during such three (3)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have made its Representatives available provided to discuss and negotiate Parent information with respect to such Acquisition Proposal in good faith accordance with Parent’s Representatives any proposed modifications Section 5.3(d), (2) the Company shall have given Parent the three (3)-business day period after the Determination Notice to propose revisions to the terms and conditions of this Agreement during the three or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered after giving effect to the Company a written proposal capable of being accepted proposals made by the Company to alter the terms or conditions of this Agreement Parent during such three (3) Business Day period, the Company Board shall have determined in good faith (if any, after consultation with outside legal counsel), after considering the terms Board of such proposal by ParentDirectors shall have determined, in good faith, that such Acquisition Proposal is a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement Offer and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; providedLegal Requirements. Issuance of any “stop, however, that in no event shall this Section 6.3(c) affect the obligations look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in Sections 6.2 this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any material amendment to any Acquisition Proposal and 6.3; and providedrequire a new Determination Notice, further, except that any such disclosure will the references to three (3) business days shall be deemed to be a Company Board Recommendation Change unless two (2) business days; and
(ii) other than in connection with an Acquisition Proposal, the Board of Directors publicly reaffirms may make a Company Adverse Change Recommendation in response to an Intervening Event if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least three (3) business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such three (3)-business day period shall have negotiated in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that a Company Adverse Change Recommendation would no longer be necessary; and (C) (1) the Company shall have specified in reasonable detail the facts and circumstances underlying the Intervening Event that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the three (3)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation within five Business Days in response to such Intervening Event would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Intervening Event and require a new Determination Notice, except that for purposes of such disclosuresubsequent Determination Notice, the references to three (3) business days shall be deemed to be two (2) business days.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(1) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withhold or qualify (or modify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iii2) approve, adopt, endorse, Table of Contents recommend or declare advisable, or publicly propose to approve, recommendadopt, endorse endorse, recommend or otherwise declare advisable the adoption advisable, any Acquisition Proposal, (3) after public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three (3) business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (4) following the commencement of a tender offer or no position exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within ten (other than in a communication made in compliance with 10) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange ActAct (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) or (5) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with respect the SEC or disseminated to the Company’s stockholders (any Acquisition Proposal shall be considered a breach of action or failure to take action described in this clause (iii)i) being referred to as a “Company Adverse Change Recommendation”), or (ivii) resolveapprove, agree adopt, endorse, recommend or publicly declare advisable, or propose to take approve, adopt, endorse, recommend or declare advisable, or allow the Company to execute or enter into any such actions letter of intent, agreement in principle, acquisition agreement or other Contract with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (each such foregoing action or failure to act other than an Acceptable Confidentiality Agreement entered into in clauses compliance with Section 5.3(c)).
(ib) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at At any time prior to the Appointment Offer Acceptance Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect a Company Board Recommendation Change provided that :
(i) the Company Board determines in good faith (if any Acquired Corporation has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) that the failure to effect Board of Directors may make a Company Board Adverse Change Recommendation Change would reasonably be expected to be or (y) provided that such Acquisition Proposal did not arise out of a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior ProposalSection 5.3, the Company Board approves or recommends may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Proposal; Offer, in each case of the preceding clauses (iix) and (y), if and only if (1) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate Directors determines in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (2) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e) at least five (5) business days prior to making any such Company Adverse Change Recommendation or effecting such termination (a “Determination Notice”) (which notice shall not constitute such Company Adverse Change Recommendation or termination) and, if desired by Parent, during such five (5)-business day period shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of such this Agreement or another proposal to the extent proposed by Parent; and (3) (A) the Company shall have provided, that a and shall have caused its Representatives to provide, to Parent information with respect to such Acquisition Proposal in accordance with Sections 5.3(c) and 5.3(d), including the proposed definitive agreements (and any related agreements) among any Acquired Corporation and any Person or group of Persons making such Table of Contents Acquisition Proposal, (B) the Company Board Recommendation Change is still necessary in light shall have given Parent the five (5)-business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal and (C) no earlier than the end of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties five (5)-business day period, after giving effect to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreementduring such period, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Actif any, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its financial advisors of nationally recognized reputation and outside legal counsel) , the Board of Directors shall have determined, in good faith, that such Acquisition Proposal remains a Superior Offer and that the failure to make the Company Adverse Change Recommendation in response to such disclosure Superior Offer or terminate this Agreement pursuant to Section 8.1(e) would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors to the Company Stockholders Company’s stockholders under applicable Delaware Law; providedLegal Requirements. Issuance of any “stop, however, that in no event shall this Section 6.3(c) affect the obligations look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in Sections 6.2 this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form and 6.3; amount of payment of consideration) or other material amendment to any Acquisition Proposal and providedrequire a new Determination Notice, further, except that any such disclosure will the references to five (5) business days in connection therewith above in this Section 6.1(b)(i) shall be deemed to be three (3) business days; and
(ii) other than in connection with a Superior Offer (which shall be subject, in connection with a Company Board Recommendation Adverse Change unless Recommendation, solely to Section 6.1(b)(i)), the Board of Directors publicly reaffirms may make a Company Adverse Change Recommendation in response to an Intervening Event if and only if (1) the Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (2) the Company Board shall have given Parent a determination notice at least five (5) business days prior to making any such Company Adverse Change Recommendation within and, if desired by Parent, during such five Business Days (5)-business day period shall have negotiated, and shall have caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent; and (3) (A) the Company shall have specified in reasonable detail the facts and circumstances relating to such Intervening Event that render such Company Adverse Change Recommendation necessary, (B) the Company shall have given Parent the five (5)-business day period after such determination notice to propose revisions to the terms of this Agreement or make another proposal, and (C) no earlier than the end of such disclosurefive (5)-business day period, after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel, the Board of Directors shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation in response to such Intervening Event would nonetheless be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the facts and circumstances specified in clause (3)(A) of this Section 6.1(b)(ii) and require a new determination notice under clause (2) of this Section 6.1(b)(ii), except that the references to five (5) business days in connection therewith above in this Section 6.1(b)(ii) shall be deemed to be three (3) business days.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms provisions of this Section 6.3(b5.14, (A) and Section 6.3(c), the Company Board Company’s board of directors shall (x) recommend that the holders of Company Shares accept Company’s stockholders adopt this Agreement and approve the Offer, tender their Company Shares to Acquisition Sub pursuant to Merger and the Offer and, if required by other transactions contemplated hereby in accordance with the applicable provisions of Delaware Law, adopt this Agreement the DGCL (the “Company Board Recommendation”).
) and (by) Neither include the Company Board Recommendation in the Proxy Statement, and (B) neither the Company’s board of directors nor any committee thereof shall (i) fail to make make, withdraw, amend, modify or qualify the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to ParentRecommendation, or publicly propose to withhold, withdraw, amend amend, modify or modify in a manner adverse to Parent, qualify the Company Board Recommendation, (iiiii) adopt, approve, endorse, adopt or recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such approve, endorse, adopt or recommend, an Acquisition Proposal, or (iii) fail to include the Company Board Recommendation in the Proxy Statement (the actions (each such foregoing action or failure inactions referred to act in the preceding clauses (i) through ), (ivii), and (iii) being referred to herein as an a “Company Board Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board Company’s board of directors may effect a Company Board Recommendation Change provided that at any time prior to obtaining the Required Company Stockholder Approval in the event that:
(i) the Company Board Company’s board of directors has received a bona fide written Acquisition Proposal after the date of this Agreement that was not solicited in violation of Section 5.6 and determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal is a Superior Proposal (which determination and any notice to Purchaser thereof shall not constitute a Company Board Recommendation Change) or an Intervening Event has occurred;
(ii) prior to effecting such Company Board Recommendation Change, the Company’s board of directors shall have given Purchaser at least five (5) Business Days’ notice of its intention to effect a Company Board Recommendation Change pursuant to Section 5.14(b)(i) (the “Change of Recommendation Notice Period”);
(iii) if requested by Purchaser, during the Change of Recommendation Notice Period, the Company shall have met and negotiated in good faith with Purchaser regarding modifications to the terms and conditions of this Agreement to obviate the need for a Company Board Recommendation Change;
(iv) prior to the end of the Change of Recommendation Notice Period, including any extensions thereto, Purchaser shall not have made a counter-offer or proposal in writing and in a manner that, if accepted by the Company, would form a binding contract, that the Company’s board of directors determines (after consultation with its financial advisor and its outside legal counsel) obviates the need for a Company Board Recommendation Change; and
(v) the Company’s board of directors determines (after consultation with its outside legal counsel and after considering any counter-offer or proposal made by Purchaser pursuant to this Section 5.14(b)) that, in light of such Superior Proposal or Intervening Event, the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply inconsistent with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reportsduties.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of the Company set forth in Sections 6.2 and 6.3; and provided, further, that any such disclosure will be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure.
Appears in 1 contract
Company Board Recommendation. (a) Subject to the terms of Section 6.3(b5.3(b), Section 5.3(c) and Section 6.3(c5.3(f), neither the Board of Directors of the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant to the Offer and, if required by the applicable provisions of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to the holders of the Company Shares, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iiiii) adopt, approve, recommend, endorse or otherwise declare advisable advisable, or publicly propose to adopt, approve, recommend, endorse or otherwise declare advisable, the adoption of any Acquisition Takeover Proposal (it being understood that, only with respect to that a tender offer or exchange offer, taking a neutral position or no position (other than in a “stop-look-and-listen” communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) Act with respect to any Acquisition Takeover Proposal that is a tender offer or exchange offer shall not be considered a breach of this clause (iiiii)), ) or (iviii) resolveauthorize, commit or agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iviii) being referred to herein as an “Company Board Adverse Recommendation Change”). .
(b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if, at any time prior to the Appointment Timedate on which the Stockholder Written Consent is executed and delivered to Parent in accordance with Section 6.1(a) (the “Written Consent Date”) or the Stockholder Approval Date, as applicable, the Company Board receives a Superior Proposal or there occurs an Intervening Event, of Directors of the Company Board may may, subject to compliance with Section 5.3(c), effect a Company Board Adverse Recommendation Change provided that Change:
(i) if the Board of Directors of the Company Board (A) receives a Takeover Proposal that it determines to be a Superior Proposal, (B) concludes in good faith (after consultation with its financial advisors, including at least one Qualified Financial Advisor, and outside legal counsel) that the failure to effect a Company Board Adverse Recommendation Change would reasonably be expected to be constitute a breach of its the fiduciary duties of the directors of the Company to the Company Stockholders Company’s stockholders under applicable Delaware Law, Law and in the case of a Superior Proposal, the Company Board (C) approves or recommends such Superior Proposal; or
(ii) in response to a fact, event, change, development or set of circumstances that affects the business, assets or operations of the Company that is unknown to the Board of Directors of the Company at and prior to the execution of this Agreement (such fact, event, change, development or set of circumstances, an “Intervening Event,” it being understood that in no event shall the receipt, existence or terms of a Takeover Proposal constitute an Intervening Event), if the Board of Directors of the Company has concluded in good faith (to the extent applicable, after consultation with its financial advisors, including at least one Qualified Financial Advisor, and outside legal counsel) that, in light of such Intervening Event, the failure of the Board of Directors to effect a Company Adverse Recommendation Change would reasonably be expected to constitute a breach of the fiduciary duties of the directors of the Company to the Company’s stockholders under applicable Law.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Board of Directors of the Company and any committee thereof shall not be entitled to effect any Company Adverse Recommendation Change pursuant to Section 5.3(b) unless, prior to making such Company Adverse Recommendation Change: (i) the Company shall have notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Adverse Recommendation Change (a “Recommendation Change Notice”) (it being understood that the ), which Recommendation Change Notice shall not constitute describe in reasonable detail the reasons for such intended Company Adverse Recommendation Change and (A) in the case of a Company Board Adverse Recommendation Change for purposes pursuant to Section 5.3(b)(i) in connection with a Superior Proposal, shall include a summary of this Agreement); the material terms and conditions of such Superior Proposal and a copy of the substantially final form of any related agreements, or (iiiB) in the case of a Company Adverse Recommendation Change pursuant to Section 5.3(b)(ii) in connection with an Intervening Event, shall specify in reasonable detail the facts underlying the determination of the Board of Directors of the Company that an Intervening Event has occurred, and (ii) following delivery by the Company to Parent of such Recommendation Change Notice, (A) (1) if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement intended by Parent to cause such Superior Proposal to no longer constitute a Superior Proposal or to eliminate the need for the Board of Directors of the Company to effect a Company Adverse Recommendation Change as a result of such Intervening Event, as applicable, during the period of three (3) Business Day period Days immediately following delivery by the Company to Parent of such Recommendation Change NoticeNotice (the “Recommendation Change Notice Period”); and (iv) provided, that, if Parent shall have delivered to the Company during such Recommendation Change Notice Period a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during (the “Parent Proposal”), the Board of Directors of the Company shall be entitled to analyze and review such three Parent Proposal for one (31) Business Day periodimmediately following receipt of such proposal (the “Analysis Period”); and provided, further, that, in the event that, (x) after delivery of a Recommendation Change Notice in connection with a Superior Proposal, there has been a material change or revision to the terms of such Superior Proposal or (y) after delivery of a Recommendation Change Notice in connection with an Intervening Event, there has been a material change in the facts, events or circumstances relating to such Intervening Event, in the case of each of the clauses (x) and (y), (i) the Company shall notify Parent of such material change or revision within 24 hours following such change or revision, and (ii) in connection with such material change or revision the then current Recommendation Change Notice Period shall be extended such that at least two (2) Business Days remains in such Recommendation Change Notice Period subsequent to the time the Company so notifies Parent of any such material change or revision, and (2) the Board of Directors of the Company shall have determined in good faith (after consultation with its financial advisors, including at least one Qualified Financial Advisor, and outside legal counsel), after considering the terms of such proposal Parent Proposal, that (x) such third-party Superior Proposal would continue to constitute a Superior Proposal if the modifications proposed by Parent, Parent were given effect or (y) that a Company Board Adverse Recommendation Change is still necessary in light would continue to be required as a result of such Superior Proposal Intervening Event, as applicable, or Intervening Event in order (B) Parent shall have notified the Company that it has elected not to comply negotiate with its fiduciary duties the Company with respect to any modifications to the terms and conditions of this Agreement and/or not to deliver to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3Parent Proposal. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement pursuant to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the Company shall not be entitled to enter into any Contract (other than in the event of any amendment an Acceptable Confidentiality Agreement) with respect to a Superior Proposal unless this Agreement has been or is concurrently terminated by its terms pursuant to Section 8.1 and, if required pursuant to Section 8.3, the Company has paid, or substantially concurrently pays, to Parent the Company Termination Fee.
(d) Unless this Agreement is terminated in accordance with its terms, (i) the obligations of the Company pursuant to Section 6.1(b) to call, give notice of, convene and hold the Company Stockholders’ Meeting and to hold a vote of the Company’s stockholders on the adoption of this Agreement at the Company Stockholders’ Meeting, to the extent required the Stockholder Written Consent is not delivered in accordance with Section 6.1(a), shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to be disclosed it of any Takeover Proposal (whether or not a Superior Proposal), or by a Company Adverse Recommendation Change, and (ii) in any case in which the Company SEC Reportsmakes a Company Adverse Recommendation Change pursuant to this Section 5.3, the Company shall nevertheless submit this Agreement to a vote of its stockholders; provided, that the Company shall not be obligated to recommend to its stockholders the adoption of this Agreement at the Company Stockholders’ Meeting or to include such a recommendation in the Proxy Statement if the Board of Directors of the Company makes a Company Adverse Recommendation Change pursuant to, and in accordance with the terms and conditions of, this Section 5.3.
(ce) The Company shall not take any action to exempt any Person from the restrictions on business combinations contained in Section 203 of the DGCL (or any similar provisions) or otherwise cause such restrictions not to apply, in each case, unless such actions are taken simultaneously with a termination of this Agreement in accordance with its terms.
(f) Nothing contained in this Agreement shall prohibit the Company Board from (i) from taking and disclosing to the Company Stockholders its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and or (ii) making any disclosure to the Company Stockholders Company’s stockholders that the Board of Directors of the Company Board determines to make in good faith (after consultation with its outside legal counsel) that the failure in order to make such disclosure would reasonably be expected to be a breach of fulfill its fiduciary duties to the Company Stockholders under or satisfy applicable Delaware Lawstate or federal securities Laws; provided, however, that in no event shall this Section 6.3(cany disclosure of a position contemplated by Rule 14e-2(a) affect of the obligations Exchange Act other than a rejection of any applicable Takeover Proposal, a reaffirmation of the Company set forth Board Recommendation or a “stop-look-and-listen” communication made in Sections 6.2 and 6.3; and provided, further, that any such disclosure will compliance with Rule 14d-9(f) promulgated under the Exchange Act shall be deemed to be a Company Board Adverse Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosureand may be made only in compliance with this Section 5.3.
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Company Board Recommendation. (a) Subject to the terms of Section 6.3(b) and Section 6.3(c6.1(b), the Company Board shall recommend that the holders of Company Shares accept the Offer, tender their Company Shares to Acquisition Sub pursuant hereby consents to the Offer and, if required by the applicable provisions inclusion of Delaware Law, adopt this Agreement (the “Company Board Recommendation”).
(b) Neither a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Board of Directors nor any committee thereof shall (ii)(A) fail to make the Company Board Recommendation to the holders of the Company Shares, withdraw or withhold (ii) withhold, withdraw, amend or modify or qualify in a manner adverse to ParentParent or Purchaser), or publicly propose to withhold, withdraw, amend withdraw or withhold (or modify or qualify in a manner adverse to ParentParent or Purchaser), the Company Board Recommendation, (iiiB) adopt, approve, recommendrecommend or declare advisable, endorse or otherwise publicly propose to adopt, approve, recommend or declare advisable the adoption advisable, any Acquisition Proposal, (C) after public announcement of any an Acquisition Proposal (it being understood that, only with respect to other than a tender offer or exchange offer), taking fail to publicly affirm the Company Board Recommendation within three business days after a neutral position written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the four or no position two business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender offer or exchange offer within 10 business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or cause or allow the Company to execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Offer Acceptance Time, and subject to compliance with the other provisions of this Section 6.1:
(i) if the Company has received a bona fide written Acquisition Proposal from any Person that has not been withdrawn and after consultation with outside legal counsel and its financial advisors, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal constitutes a Superior Offer, (x) the Board of Directors may make a Company Adverse Change Recommendation, or (y) provided that the Company is not in breach of Section 5.3 and in a manner that led to such Acquisition Proposal and subject to the other provisions of Section 8.1(e), the Company may terminate this Agreement pursuant to Section 8.1(e) to enter into a Specified Agreement with respect to such Superior Offer, in each case, if and only if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisors, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminating this Agreement pursuant to Section 8.1(e) at least four business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation or termination) and, if requested in writing by Parent during such four business day period, shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any revisions to the terms of this Agreement or another proposal to the extent proposed by Parent so that such Acquisition Proposal would cease to constitute a Superior Offer; and (C) (1) the Company shall have provided to Parent information with respect to such Acquisition Proposal in accordance with Section 5.3(c), as well as a copy of any acquisition agreement with respect to such Acquisition Proposal and a copy of any financing commitments relating thereto (or, if not provided in writing to the Company, a written summary of the material terms thereof), (2) the Company shall have given Parent the four business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel and its financial advisors, the Board of Directors shall have determined, in good faith, that such Acquisition Proposal constitutes a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(e) would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. Issuance of any “stop, look and listen” communication made in compliance with by or on behalf of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, taking and disclosing a position or otherwise making any disclosure as is required under Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or otherwise complying with applicable Legal Requirements shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. The provisions of this Section 6.1(b)(i) shall also apply to any change to any of the financial terms (including the form, amount and timing of payment of consideration) or other material amendment to any Acquisition Proposal and require a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, all references to “four business days” shall be deemed to be “two business days”); and
(ii) other than in connection with a Superior Offer (which shall be subject to Section 6.1(b)(i)), the Board of Directors may make a Company Adverse Change Recommendation in response to an Intervening Event if: (A) the Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisors, that the failure to do so would be inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four business days prior to making any such Company Adverse Change Recommendation and, if desired by Parent, during such four business day period shall have negotiated, and caused its Representatives to negotiate, in good faith with respect to any Acquisition Proposal shall be considered a breach revisions to the terms of this clause (iii)), Agreement or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to herein as an “Company Board Recommendation Change”). Notwithstanding the foregoing or anything another proposal to the contrary set forth in this Agreement, if, at any time prior to the Appointment Time, the Company Board receives a Superior Proposal or there occurs an Intervening Event, the Company Board may effect extent proposed by Parent so that a Company Board Adverse Change Recommendation Change provided that would no longer be necessary; and (iC) (1) the Company Board determines shall have specified in good faith reasonable detail the facts and circumstances that render a Company Adverse Change Recommendation necessary, (2) the Company shall have given Parent the four business day period after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that a Company Adverse Change Recommendation would no longer be necessary, and (3) after giving effect to the proposals made by Parent during such period, if any, after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be a breach of its fiduciary duties to the Company Stockholders under applicable Delaware Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Intervening Event, as the case may be, for such Company Board Recommendation Change (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent, the Company Directors shall have made its Representatives available to discuss and negotiate determined, in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of such Recommendation Change Notice; and (iv) if Parent shall have delivered to the Company a written proposal capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day periodfaith, the Company Board shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that a Company Board Recommendation Change is still necessary in light of such Superior Proposal or Intervening Event in order to comply with its fiduciary duties to the Company Stockholders under applicable Delaware Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Superior Proposal for purposes of this Section 6.3. The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required to be disclosed in any Company SEC Reports.
(c) Nothing in this Agreement shall prohibit the Company Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, and (ii) making any disclosure to the Company Stockholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure the Company Adverse Change Recommendation would reasonably be expected to be a breach of its inconsistent with the fiduciary duties of the Board of Directors under applicable Legal Requirements. The provisions of this Section 6.1(b)(ii) shall also apply to any material change to the Company Stockholders under applicable Delaware Law; provided, however, that in no event shall this Section 6.3(c) affect the obligations of facts and circumstances specified by the Company set forth in Sections 6.2 pursuant to clause (C)(1) above and 6.3; and providedrequire a new Determination Notice (provided that for the purposes of such subsequent Determination Notice, further, that any such disclosure will all references to “four business days” shall be deemed to be a Company Board Recommendation Change unless the Board of Directors publicly reaffirms the Company Board Recommendation within five Business Days of such disclosure“two business days”).
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