No Change in Recommendation. (a) The board of directors of Validus shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to Validus, the IPC Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC Recommendation”). (b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPC, the board of directors of Validus or IPC, as the case may be, may withhold, withdraw, qualify or modify (or publicly announce that its board of directors has resolved to take any such action) the Validus Recommendation, in the case of Validus, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries)), if the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely to be required in order for the relevant directors to comply with such directors’ fiduciary duties under applicable Law; provided that no Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, may be made unless the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, (i) has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a written notice to the other party advising it of its intention to make a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to any proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a), nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (in the case of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that such action is compelled by applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation (Ipc Holdings LTD), Amalgamation Agreement (Validus Holdings LTD)
No Change in Recommendation. (a) The board Board of directors Directors and Special Committee of Validus Company shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Statement / Prospectus), in any manner adverse to IPCParent, the Validus RecommendationBye-Law Recommendation (in the case of the Board of Directors of Company) or the Company Recommendation (in the case of the Board of Directors and/or Special Committee of Company), or publicly propose to, or publicly announce that its board Board of directors Directors and/or its Special Committee has resolved to take any such action (any of the foregoing, with respect to the Validus Bye-Law Recommendation and/or the Company Recommendation, a “Change in Validus Company Recommendation”); it being understood that, if the Special Committee of Company recommends, or proposes publicly to recommend that the shareholders of Company vote against any of the Bye-Law Amendments, such recommendation shall constitute a Change in Company Recommendation. The board Board of directors Directors and Special Committee of IPC Parent shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Statement / Prospectus), in any manner adverse to ValidusCompany, the IPC Parent Recommendation, or publicly propose to, or publicly announce that its board Board of directors Directors and/or its Special Committee has resolved to take any such action (any of the foregoing, with respect to the IPC Parent Recommendation, a “Change in IPC Parent Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Company Vote, in the case of ValidusCompany, or the Required IPC Parent Vote, in the case of IPCParent, the board Board of directors Directors and/or Special Committee of Validus Company or IPCParent, as the case may be, may withhold, withdraw, qualify or modify (or publicly announce that its board of directors has resolved to take any such action) the Validus Company Recommendation, in the case of ValidusCompany, or the IPC Parent Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries))Parent, if the board Board of directors Directors and/or Special Committee of Validus Company or IPCParent, as the case may be, after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely to be required in order for the relevant directors to comply with such directors’ fiduciary duties under applicable Lawlaw; provided that no Change in Validus Company Recommendation or Change in IPC Parent Recommendation, as the case may be, may be made unless the party seeking to make such Change in Validus Company Recommendation or Change in IPC Parent Recommendation, as the case may be, (i) has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a written notice to the other party advising it of its intention to make a Change in Validus Company Recommendation or a Change in IPC Parent Recommendation, as the case may be, and such other party does not, within five three business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Company Recommendation or the Change in IPC Parent Recommendation, as the case may be, as determined in good faith by the board Board of directors Directors and/or Special Committee of Validus Company or IPCParent, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five three business day period, the party seeking to make such Change in Validus Company Recommendation or Change in IPC Parent Recommendation, as the case may be, shall, and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith with the other party (to the extent the other such party desires to negotiate) with respect to any proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a), nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (in the case of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that such action is compelled by applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Tower Group, Inc.), Merger Agreement (Tower Group, Inc.)
No Change in Recommendation. (a) The board of directors of Validus shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any Each of the foregoing, with respect to the Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to Validus, the IPC Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPC, Special Committee and the board of directors of Validus the Company shall not, directly or IPC, as the case may be, may indirectly:
(i) withhold, withdraw, qualify withdraw or modify (or propose or resolve to withhold, withdraw or modify), in a manner adverse to Parent, the Special Committee Recommendation or the Company Board Recommendation or publicly announce that its board of directors has resolved an intention to take any such actionaction or make any statement inconsistent with the Special Committee Recommendation or the Company Board Recommendation; or
(ii) the Validus Recommendationapprove, adopt or recommend, or propose to approve, adopt or recommend, any Acquisition Proposal. Notwithstanding anything in the case foregoing to the contrary, each of Validus, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries)), if Special Committee and the board of directors of Validus the Company may withhold or IPCwithdraw the Special Committee Recommendation and the Company Board Recommendation, as applicable, if the case may be, Special Committee determines in good faith after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely the failure to do so would be required in order for the relevant directors to comply inconsistent with such directors’ its fiduciary duties under applicable LawLaw (a “Change of Recommendation”); provided that no if the Change in Validus of Recommendation or is due to the existence of a Superior Proposal (a “Superior Proposal Change in IPC of Recommendation”), as the case may be, may be made Special Committee shall not make such Superior Proposal Change of Recommendation unless the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, (i) Special Committee has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a given Parent written notice to the other party advising it of its intention to make take this action at least two Business Days prior to its taking this action (it being understood that this intention or notice or the disclosure of either will not constitute a Superior Proposal Change in Validus of Recommendation entitling Parent or the Special Committee, as applicable, to terminate this Agreement pursuant to Section 9.2(c)). The Special Committee agrees that (x) during the two Business Day period prior to its making a Superior Proposal Change in IPC of Recommendation, as Parent will be permitted to propose to the case may beSpecial Committee revisions to the terms of the transactions contemplated by this Agreement, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel Special Committee and its financial advisors toRepresentatives will, if requested by Parent, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to Parent and its Representatives regarding any proposed adjustments revisions to the terms of the transactions contemplated by this Agreement proposed by Parent, and conditions (y) the Special Committee may make a Superior Proposal Change of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a), nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (Recommendation in the case of an Acquisition Proposal that was a Change Superior Proposal only if it continues to be a Superior Proposal in Validus Recommendation) or IPC (in the case light of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters any revisions to the applicable shareholders meeting, terms of the applicable board of directors may submit such matters without recommendation, in transaction contemplated by this Agreement to which event Parent and the applicable board of directors shall communicate the basis for its lack of a recommendation Special Committee have agreed prior to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that expiration of such action is compelled by applicable Lawtwo Business Day period.
Appears in 1 contract
Samples: Merger Agreement (Cadus Corp)
No Change in Recommendation. Prior to the Specified Time:
(ai) The board of directors of Validus the Parent Board shall not not, except as set forth in this Section 5.04, withhold, amend, withdraw, qualify or modify (including by amendment or supplement to and the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Recommendation, or Parent Board shall not publicly propose toto withhold, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of IPC shall not withholdamend, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/ProspectusParent Board Recommendation), in any a manner adverse to Validusthe Company, including with respect to its recommendation to the stockholders of Parent that they vote in favor of approving and adopting this Agreement, the IPC Merger, and the Transactions, the Parent Board Recommendation;
(ii) the Parent Board shall include the Parent Board Recommendation in the Parent Registration Statement and the Proxy Statement and shall use reasonable best efforts to solicit such approval;
(iii) [Reserved];
(iv) [Reserved];
(v) [Reserved];
(vi) the Parent Board (or any committee of the Parent Board) shall not otherwise resolve, propose or publicly propose to, or publicly announce that its board of directors has resolved agree to take any such action (do any of the foregoing, with respect to the IPC Recommendationforegoing actions described in clauses (i) through (ii) (any action described in clauses (i) through (ii), a “Change in IPC RecommendationParent Adverse Recommendation Change”); and
(vii) [Reserved].
(bviii) Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, at any time prior to obtaining the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPCSpecified Time, the board of directors of Validus or IPC, as the case may be, may withhold, withdraw, qualify or modify (or publicly announce that its board of directors has resolved to take any such action) the Validus Recommendation, in the case of Validus, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC Parent Board may make a Parent Adverse Recommendation Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, response to an Acquisition Proposal in respect of Validus or any of its subsidiaries)), Intervening Event if the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors, concludes Parent Board determines in good faith that such action is reasonably likely to be required in order for the relevant directors to comply with such directors’ fiduciary duties under applicable Law; provided that no Change in Validus Recommendation or Change in IPC Recommendationfaith, as the case may be, may be made unless the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, (i) has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a written notice to the other party advising it of its intention to make a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to any proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a), nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (in the case of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that the failure to do so would be a breach of the Parent Board’s fiduciary duties under applicable Law, only if all of the following conditions are satisfied:
(A) Parent shall have first provided the Company an Intervening Event Notice at least five Business Days in advance advising the Company that Parent intends to make a Parent Adverse Recommendation Change (it being understood and hereby agreed that the delivery and receipt of any such action Intervening Event Notice shall not, in and of itself, be deemed to be a Parent Adverse Recommendation Change) and specifying, in reasonable detail, the Intervening Event;
(B) during the applicable Intervening Event Notice Period (or any mutually agreed extension or continuation thereof), Parent and its Representatives shall negotiate in good faith with the Company and its officers, directors and other Representatives regarding any changes to the terms of this Agreement and any other proposals made by the Company so that a failure to effect a Parent Adverse Recommendation Change in response to such Intervening Event would no longer be inconsistent with the Parent Board’s fiduciary duties under applicable Law;
(C) the Company does not make, within the applicable Intervening Event Notice Period (or any extension or continuation thereof) after the receipt of such notice, a proposal that would, in the good faith judgment of the Parent Board (after consultation with outside legal counsel), cause the failure to effect a Parent Adverse Recommendation Change in response to such Intervening Event to no longer be inconsistent with the Parent Board’s fiduciary duties under applicable Law (it being understood and agreed that any material change in any event, occurrence or facts relating to such Intervening Event shall require a new Intervening Event Notice with a new Intervening Event Notice Period ending on the day that is compelled by three Business Days after such material change); and
(D) following the Intervening Event Notice Period, the Parent Board shall have determined in good faith (after consultation with its outside legal counsel) that the failure to effect a Parent Adverse Recommendation Change in response to such Intervening Event would continue to be a breach of the Parent Board’s fiduciary duties under applicable Law.
(ix) [Reserved].
Appears in 1 contract
No Change in Recommendation. (a) The board of directors of Validus shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any Each of the foregoing, with respect to the Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to Validus, the IPC Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPC, Special Committee and the board of directors of Validus the Company shall not, directly or IPC, as the case may be, may indirectly:
(i) withhold, withdraw, qualify withdraw or modify (or propose or resolve to withhold, withdraw or modify), in a manner adverse to Parent, the Special Committee Recommendation or the Company Board Recommendation or publicly announce that its board of directors has resolved an intention to take any such actionaction or make any statement inconsistent with the Special Committee Recommendation or the Company Board Recommendation; or
(ii) the Validus Recommendationapprove, adopt or recommend, or propose to approve, adopt or recommend, any Acquisition Proposal. Notwithstanding anything in the case foregoing to the contrary, each of Validus, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries)), if Special Committee and the board of directors of Validus the Company may withhold or IPCwithdraw the Special Committee Recommendation and the Company Board Recommendation, as applicable, if the case may be, Special Committee determines in good faith after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely the failure to do so would be required in order for the relevant directors to comply inconsistent with such directors’ its fiduciary duties under applicable LawLaw (a “Change of Recommendation”); provided that no if the Change in Validus of Recommendation or is due to the existence of a Superior Proposal (a “Superior Proposal Change in IPC of Recommendation”), as the case may be, may be made Special Committee shall not make such Superior Proposal Change of Recommendation unless the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, (i) Special Committee has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a given Parent written notice to the other party advising it of its intention to make take this action at least two Business Days prior to its taking this action (it being understood that this intention or notice or the disclosure of either will not constitute a Superior Proposal Change in Validus of Recommendation entitling Parent or the Special Committee, as applicable, to terminate this Agreement pursuant to Section 9.2(c)). The Special Committee agrees that (x) during the two Business Day period prior to its making a Superior Proposal Change in IPC of Recommendation, as Parent will be permitted to propose to the case may beSpecial Committee revisions to the terms of the transactions contemplated by this Agreement, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel Special Committee and its financial advisors toRepresentatives will, if requested by Parent, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to Parent and its Representatives regarding any proposed adjustments revisions to the terms and conditions of the transactions contemplated by this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a)Agreement proposed by Parent, nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (in the case of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that such action is compelled by applicable Law.and
Appears in 1 contract
Samples: Merger Agreement (Voltari Corp)
No Change in Recommendation. (a) The board of directors of Validus shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to Validus, the IPC Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPC, the board of directors of Validus or IPC, as the case may be, may withhold, withdraw, qualify or modify (or publicly announce that its board of directors has resolved to take any such action) the Validus Recommendation, in the case of Validus, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries)5.5), if the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely to be required in order for the relevant directors to comply with such directors’ fiduciary duties under applicable Law; provided that no Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, may be made unless the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, (i) has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a written notice to the other party advising it of its intention to make a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to any proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a)foregoing, nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus (in the case of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that such action is compelled by applicable Law.
Appears in 1 contract
No Change in Recommendation. (a) The board of directors of Validus Max shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to IPC, the Validus Max Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the Validus Max Recommendation, a “Change in Validus Max Recommendation”). The board of directors of IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner adverse to ValidusMax, the IPC Recommendation, or publicly propose to, or publicly announce that its board of directors has resolved to take any such action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Required Validus Max Vote, in the case of ValidusMax, or the Required IPC Vote, in the case of IPC, the board of directors of Validus Max or IPC, as the case may be, may withhold, withdraw, qualify or modify (or publicly announce that its board of directors has resolved to take any such action) the Validus Max Recommendation, in the case of ValidusMax, or the IPC Recommendation, in the case of IPC, other than, with respect to IPC only, than in connection with an Acquisition Proposal (as defined in Section 5.5(a)) (for the avoidance of doubt, with respect to which the conditions under which Xxx xxx make a Change of Max Recommendation and IPC may make a Change of IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5 (it being acknowledged that Validus is not required to comply with any provision of Section 5.5 in order to make a Change of Validus Recommendation that is related, directly or indirectly, to an Acquisition Proposal in respect of Validus or any of its subsidiaries)5.5), if the board of directors of Validus Max or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors, concludes in good faith that such action is reasonably likely to be required in order for the relevant directors to comply with such directors’ fiduciary duties under applicable Law; provided that no Change in Validus Max Recommendation or Change in IPC Recommendation, as the case may be, may be made unless the party seeking to make such Change in Validus Max Recommendation or Change in IPC Recommendation, as the case may be, (i) has not breached in any material respect its obligations under this Section 5.4, and (ii) has provided a written notice to the other party advising it of its intention to make a Change in Validus Max Recommendation or a Change in IPC Recommendation, as the case may be, and such other party does not, within five business days following its receipt of such notice, agree to make adjustments in the terms and conditions of this Agreement which obviate the need for the Change in Validus Max Recommendation or the Change in IPC Recommendation, as the case may be, as determined in good faith by the board of directors of Validus Max or IPC, as the case may be, after consultation with its outside legal counsel and financial advisors (provided that, during such five business day period, the party seeking to make such Change in Validus Max Recommendation or Change in IPC Recommendation, as the case may be, shall, and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith with the other party (to the extent the other party desires to negotiate) with respect to any proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the foregoing or the proviso to Section 5.5(a)foregoing, nothing contained herein or in Section 5.5 shall be deemed to relieve either of Validus Max or IPC of its obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Max Vote at the Validus Max Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case may be; provided, however, that if the board of directors of Validus Max (in the case of a Change in Validus Max Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall have effected a Change in Validus Max Recommendation or a Change in IPC Recommendation, as the case may be, then in submitting such matters to the applicable shareholders meeting, the applicable board of directors may submit such matters without recommendation, in which event the applicable board of directors shall communicate the basis for its lack of a recommendation to the applicable shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement thereto to the extent it determines after consultation with its outside legal counsel, that such action is compelled by applicable Law.
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