No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)): (A) fail to include the Company Recommendation in the Schedule 14D-9; (B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent; (C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation; (D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent); (E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or (F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)). (ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so. (iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cards Acquisition Inc.), Agreement and Plan of Merger (Collectors Universe Inc), Merger Agreement (Collectors Universe Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii6.02(d)(iii) and taking into account Section 7.2(e6.02(e), the Company Board shall not (it being understood that any of the determination, actions described in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead toany of clauses (A) through (F) below, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a “Change of Recommendation or violate this Section 7.2(d)Recommendation”):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statementwith respect to an Acquisition Proposal initiated through a tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, directly or indirectly, fail to any Person beneficially owning five percent or more recommend unequivocally against acceptance of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendationsuch offer within 10 Business Days of commencement of such offer;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three 10 Business Days after receipt of any written request to do so from ParentParent (provided that Parent shall not make such a request more than two times, other than in the event of any publicly announced Acquisition Proposal in respect of which Parent may make an additional request);
(E) approve or recommend, or publicly declare advisable, advisable any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommendrecommend or enter into, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i6.02(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b6.02(d)(iii), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).:
Appears in 2 contracts
Samples: Merger Agreement (United Rentals, Inc.), Merger Agreement
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii5.2(e)(ii), Section 5.2(e)(iii) and taking into account or Section 7.2(e5.2(f), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iiiA) and taking into account Section 7.2(e)) will not constitute effect a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
Recommendation, (B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or Proposal, (C) approve, recommend, enter into or publicly declare advisable or publicly propose to enter into, into any Alternative Acquisition Agreement; or
Agreement or (FD) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i))foregoing.
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, at any time prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, in response to an Acquisition Proposal that did not result from a material breach by the Company, its Wholly Owned Subsidiaries or its or their respective Representatives of Section 5.2(a) or Section 5.2(b) (including, for the avoidance of doubt, any failure by any such Representatives to follow an instruction required to be given by the Company thereunder) and that the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurreddetermines, and (2) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that based on constitutes a Superior Proposal, the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to Company Board may (x) effect a Change of Recommendation would be inconsistent or (y) terminate this Agreement pursuant to and in accordance with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(xSection 7.3(b) of this Section 7.2(d)(iii), that and substantially concurrently with such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to termination enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do soProposal; provided, however, that no prior to taking any such actions may be taken unless and untilaction: (IA) the Company has given must give Parent written notice of its intention to take such action at least ninety-six hours four (4) Business Days in advance (the “Takeover Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c5.2(d), mutatis mutandis, and mutandis (z) in it being understood that each time any material revision or material amendment to the case of an Intervening Event, a reasonably detailed description terms of such Intervening EventAcquisition Proposal is made, the Takeover Notice Period shall be extended for an additional three (3) Business Days); (IIB) during the Takeover Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate negotiates in good faith with Parent regarding any adjustments or modifications to revise the terms of this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated proposed by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicableParent; and (IIIC) at the end of the Takeover Notice Period, the Company Board shall have taken determines in good faith, after consultation with its financial advisor and outside legal counsel (after taking into account any written revisions to this Agreement proposed by Parent in writing Xxxxxx and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Takeover Notice Period), that such Acquisition Proposal continues to be a Superior Proposal and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect make a Change of Recommendation or terminate this Agreement and substantially concurrently with such termination enter into an Alternative Acquisition Agreement would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition .
(iii) Notwithstanding anything in this Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Periodcontrary, the Notice Period shall be reduced to seventy-two hours and (z) Company Board may, at any time prior to the time the Requisite Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii)Vote is obtained, the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute effect a Change of Recommendation in response to an Intervening Event if: (A) the Company provides Parent with four (4) Business Days’ prior written notice of its intention to take such action, which notice shall include the material information considered by the Company Board with respect to such Intervening Event; (B) during such four (4) Business Day period, to the extent requested by Parent, the Company negotiates in good faith with Parent regarding any adjustments or violate modifications to the terms of this Section 7.2(dAgreement proposed by Parent; and (C) at the end of such four (4) Business Day period, the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel (after taking into account any adjustments or modifications to the terms of this Agreement committed to by Parent in writing and any other information offered by Parent), that the failure to make a Change of Recommendation in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Boeing Co), Merger Agreement (Boeing Co)
No Change of Recommendation or Alternative Acquisition Agreement. The board of directors of the Company and the Independent Committee shall not:
(i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly Parent or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm Merger Sub the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Merger; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except except as expressly permitted by by, and after compliance with, Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b9.3(a), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 7.2(b) entered into in compliance with Section 7.2(b)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Requisite Company Board may: (A) effect a Change Vote is obtained, the board of Recommendation (1) if directors of the Company, based on the unanimous recommendation of the Independent Committee, may (x) an unsolicited bona fide written Acquisition Proposal is received by withhold, withdraw, qualify or modify the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect Recommendation or (y) approve, recommend or otherwise declare advisable any Superior Proposal not solicited, entered into or agreed to in breach of this Section 7.2 and made after the date of this Agreement and/or authorize the Company to terminate this Agreement pursuant to Section 9.1(d)(ii) in order to enter into an Intervening Event has occurredAlternative Acquisition Agreement with respect to such Superior Proposal, in the case of both (x) and (2) y), if the board of directors of the Company Board (acting through the Independent Committee) determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would do so could be inconsistent with the directors’ its fiduciary duties obligations under applicable Law and, in the case Laws (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: prior to making any Change of Recommendation, (Ii) the Company has and the Independent Committee have given the Parent and Merger Sub at least five business days written notice at least ninety-six hours in advance advising that the Company (acting through the Independent Committee) (the “Notice Periodof Superior Proposal”), which notice shall set forth in writing that the Company Board ) currently intends to consider whether to take such action and the basis therefor, and shall also include (yincluding all required information under Section 7.2(f) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (IIii) during the five business day period following Parent’s and Merger Sub’s receipt of the Notice Period, to the extent requested by Parentof Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith with (to the extent Parent and Merger Sub desire to revise negotiate) to make such adjustments in the terms and conditions of this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect such Superior Proposal ceases to constitute a Superior Proposal, as applicable; and (III) at following the end of the Notice Periodfive business day period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith thatfaith, after consultation with outside legal counseltaking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, based on that the information then available, and after consultation with an independent financial advisor Acquisition Proposal giving rise to the Notice of nationally recognized reputation, a failure Superior Proposal continues to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to constitute a Superior Proposal, as the case may be (it being understood that (y) any . Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes 7.2 and shall require a new Notice of the Notice Period, except that subsequent Superior Proposal to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours Parent and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement Merger Sub as contemplated by clause (B) of this Section 7.2(d)(iii7.2(f), ; and the Company shall have terminated be required to comply with the requirements of this Agreement and abandoned the Transactions in accordance paragraph fully with and pursuant respect to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)such amended Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) The Company Board and taking into account Section 7.2(e), each committee of the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statementParent or Merger Sub, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions with respect to the financial terms ofMerger; or except as expressly permitted by, or any material revisions toand after compliance with, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b8.3(a), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, Merger Sub acquires Shares in the Offer, if an Acquisition Proposal has been made after the date hereof, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by may withhold, withdraw, qualify or modify the Company and has not been withdrawn and receipt of Recommendation or approve, recommend or otherwise declare advisable such Acquisition Proposal was not as (each, a result “Change of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredRecommendation”), and (2) if the Company Board determines in good faith, after consultation with its outside legal counselcounsel and with its financial advisor, that based on the information then available and after consultation with an independent financial advisor (i) such Acquisition Proposal was not solicited, initiated, encouraged or facilitated in breach of nationally recognized reputationthis Agreement, that (ii) such Acquisition Proposal would be reasonably likely to constitute a Superior Proposal, (iii) failure to effect a Change of Recommendation do so would be inconsistent with the such board of directors’ fiduciary duties obligations under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do soLaw; provided, however, that no such actions Change of Recommendation may be taken unless and until: (I) made until after at least 48 hours following Parent’s receipt of notice from the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing advising that management of the Company Board currently intends to consider whether recommend to its board of directors that it take such action and the basis therefor, and shall also include (y) including all necessary information under Section 6.2(f). In determining whether to make a Change of Recommendation in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of response to an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by ParentAcquisition Proposal or otherwise, the Company shall, Board shall take into account (and the Company shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to) any changes to a Superior Proposal, as applicable; and (III) at the end terms of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any notice. Any material revisions amendment to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii6.2(c), including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced notice period referred to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of in this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d6.2(c).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conmed Corp), Merger Agreement (Viking Systems Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii5.5(e) and taking into account Section 7.2(e5.5(f), the Company Board Board, including any committee thereof, shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(Ai) withdraw or fail to include make when required by this Agreement (or publicly propose or publicly resolve to withdraw or fail to make when required by this Agreement) the Company Recommendation in with respect to the Schedule 14D-9Merger;
(Bii) withhold, withdraw, qualify or modify (or publicly propose or publicly resolve to withhold, withdraw, qualify or modify) the Company Recommendation with respect to the Merger in a manner adverse to ParentBuyer;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(Eiii) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected Proposal;
(iv) fail to lead to an include the Company Recommendation in the Information Statement;
(v) if any Acquisition Proposal that is structured as a tender offer or exchange offer for the Company Common Shares is commenced pursuant to Rule14d-2 of the Exchange Act, fail to recommend against acceptance of such offer by the Company Stockholders within ten (10) Business Days (which for this purpose shall be used as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer pursuant to Rule 14d-2 of the Exchange Act;
(vi) approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agreeletter of intent, authorize memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, collaboration agreement or commit to do any of the foregoing (it being understood that any revisions to the financial terms ofother agreement with respect to, or any material revisions that is intended or would reasonably be expected to lead to, any Acquisition Proposal or Alternative (other than a confidentiality agreement pursuant to Section 5.5(b)(i) relating to any Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Proposal) (an “Alternative Acquisition Agreement”, respectivelyand any of the actions set forth in the foregoing clauses (i) through (vi), for purposes a “Change of this Section 7.2(d)(iRecommendation”)).; or
(iivii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do soAgreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).
Appears in 2 contracts
Samples: Merger Agreement (Snap Interactive, Inc), Merger Agreement (LiveXLive Media, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account subject to Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold(i) withhold or withdraw (or publicly propose or resolve to withhold or withdraw) the Company Recommendation or (ii) change, withdrawqualify, qualify amend or modify (or publicly propose or resolve to withholdchange, withdrawqualify, qualify amend or modify) the Company Recommendation in a manner adverse to ParentParent or Merger Sub;
(C) make any statementapprove, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, declare advisable or propose to approve, recommend or declare advisable (publicly declare advisable, or otherwise) any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or approve, recommend, declare advisable, enter into or publicly propose to approve, recommend, declare advisable or enter into (publicly propose to enter into, or otherwise) any Alternative Acquisition Agreement;
(D) within ten (10) Business Days following a written request by Parent following the date of any Acquisition Proposal or any material modification thereto is first published or sent, given or communicated to the shareholders of the Company, fail to publicly reaffirm the Company Recommendation; orprovided that if Parent requests in writing such reaffirmation at least five (5) Business Days prior to the Company Stockholders Meeting, by the date that is at least three (3) Business Days prior to the Company Stockholder Meeting (it being understood that the Company will have no obligation to make such reaffirmation on more than one occasion per Acquisition Proposal and one occasion per material modification thereto);
(E) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal; or (F) agree, authorize or commit to do any of the foregoing (it being understood that any material revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii), and after compliance in with Section 7.2(d)(iii) (except for failures to comply which are both immaterial and unintentional) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, if the Company has complied with this Section 7.2 (except for failures to comply which are both immaterial and unintentional), the Company Board may: (A) effect a Change of Recommendation (1) if an (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company after the date of this Agreement that was made in compliance with this Section 7.2 (except for failures to comply which are both immaterial and has not been withdrawn and receipt of unintentional), the Company Board determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal was is bona fide and such Acquisition Proposal is not as a result withdrawn prior to the Change of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect Recommendation or (y) an Intervening Event has occurred, occurred and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, that (x) a failure to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law andand (y), in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) take action to terminate this Agreement pursuant to, and in accordance with, Section 9.3(b), to cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that the Company Board determines in good faith that such Acquisition Proposal is bona fide and that such Acquisition Proposal constitutes a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) Agreement or agree, authorize or commit to do so); provided, however, that no such actions Change of Recommendation or action to terminate the Agreement pursuant to Section 9.3(b) to enter into an Alternative Acquisition Agreement may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours four (4) Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include include, (y) in the case of a Superior such an Acquisition Proposal, all the information required by Section 7.2(c), mutatis mutandisspecifying the identity of the Person or Group making such Superior Proposal, the material terms and conditions of such Superior Proposal and attaching the most current version of such agreement, and (z) in the case of an Intervening Event, a reasonably detailed reasonable description of such Intervening Event; and (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause instruct its Representatives legal and financial advisors to, negotiate in good faith with Parent and its Representatives throughout the Notice Period (to the extent Parent wishes to negotiate) to revise this Agreement so such that conditions set forth in clause (A)(2the failure of the Company Board to effect a Change of Recommendation or to take such action to terminate the Agreement pursuant to Section 9.3(b) of this Section 7.2(d)(iii) would not be satisfied or the to enter into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) Agreement, as applicable, would no longer be reasonably likely to be inconsistent with respect to a Superior Proposal, as applicablethe directors’ fiduciary duties under Applicable Law; and (III) at the end of the Notice Period, prior to taking action to effect a Change of Recommendation or to terminate the Agreement pursuant to Section 9.3(b) to enter into an Alternative Acquisition Agreement, the Company Board shall have taken into account any revisions to this Agreement proposed committed to by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith that, after consultation with outside legal counsel, that based on the information then available, and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, a failure to effect a Change of Recommendation would continues to be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is continues to be an Alternative Acquisition Agreement with respect to a Superior Proposal, and as such the Agreement shall be terminated pursuant to Section 9.3(b), as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal (including any increase in the consideration payable pursuant thereto in response to any adjustments to the terms and conditions of this Agreement made by Parent) shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z2) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dBusiness Days).
Appears in 2 contracts
Samples: Merger Agreement (Benefitfocus, Inc.), Merger Agreement (Benefitfocus, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as expressly permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e5.3(e), the Company Board shall not (it being understood agrees that the determination, in itself, by the Company Board that and each committee of the Company Board shall not: (i) withhold, withdraw, qualify, change, amend or modify (or publicly propose to withhold, withdraw, qualify, change, amend or modify), in a manner adverse to Parent or Merger Subsidiary, the Company Board Recommendation with respect to the Merger, (ii) approve, adopt, declare advisable (publicly or otherwise), or recommend (publicly or otherwise) an Acquisition Proposal constitutesProposal, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(Aiii) fail to include the Company Board Recommendation in any version of the Proxy Statement, (iv) fail to recommend, in a solicitation/recommendation statement on Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make against any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case Acquisition Proposal that is inconsistent with a tender offer or exchange offer subject to Regulation 14D promulgated under the Company Recommendation;
Exchange Act (Dother than any tender offer or exchange offer by Parent or Merger Subsidiary) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation within ten (but in any event within three 10) Business Days after receipt the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer; provided that the taking no position or a neutral position by the Board of Directors in respect of the acceptance of any written request such tender offer or exchange offer as of the end of such period shall constitute a failure to do so from Parent);
recommend against acceptance of any such offer, (Ev) approve or recommend, or publicly declare advisablepropose to approve or recommend, or cause or allow the Company or any of its Affiliates to execute or enter into (or resolve or agree to take any of the foregoing actions with respect to), any Acquisition Proposal letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other proposal similar agreement, arrangement or understanding (A) constituting, or relating to, or that is intended to or would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such including an Alternative Acquisition Agreement) or agree(B) requiring it (or that would require it) to abandon, authorize terminate or commit fail to do so; providedconsummate this Agreement, howeverthe Merger or the other Transactions or (vi) upon the occurrence of a material event or development, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that fail to publicly affirm or reaffirm the Company Board intends to consider whether to take such action and the basis therefor, and shall also include Recommendation within ten (y10) in the case Business Days of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent requesting in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions no obligation to make such affirmation or reaffirmation on more than two (2) separate occasions) (any action described in accordance with and pursuant to Section 9.3(bclauses (i) through (vi)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a “Change of Recommendation or violate this Section 7.2(dRecommendation”).
Appears in 2 contracts
Samples: Merger Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Alimera Sciences Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(ii), Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board Board, including any committee thereof, shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with that has the Transactions, in each case that is inconsistent with substantive effect of a withdrawal or qualification of the Company Recommendation;
(D) following the commencement of any tender or exchange offer relating to the securities of the Company, fail to issue a press release within ten (10) Business Days of such commencement that the Company recommends rejection of such tender or exchange offer;
(E) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation within ten (but in any event within three 10) Business Days (or, if earlier, prior to the Company Shareholder Meeting) after receipt of any written request to do so from Parent), which request may be made only once with respect to any such Acquisition Proposal, except that Parent may make an additional request after any material change in the terms of such Acquisition Proposal;
(EF) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, or enter into, any Alternative Acquisition Agreement; or
(FG) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i))foregoing.
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, at any time prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, the Company Board may: (A) effect a Change of Recommendation (1) if (x) in response to an unsolicited bona fide written Acquisition Proposal is received by that did not result from a non de minimis breach of the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its Company’s obligations set forth in this Section 7.2(a) in any material respect or (y) an Intervening Event has occurred7.2, and (2) if the Company Board determines in good faith, after consultation with outside legal counselcounsel and financial advisor, that based on (A) such Acquisition Proposal constitutes a Superior Proposal, and (B) the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law andLaw, then, notwithstanding anything in this Agreement to the case contrary, (x) the Company Board may effect a Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; Recommendation and/or (By) cause or permit the Company or any of the Company’s Subsidiaries to terminate this Agreement and concurrently with such termination enter into an Alternative Acquisition Agreement with respect to a such Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do soProposal; provided, however, that no prior to taking such actions may be taken unless and untilactions: (I) the Company has given must give Parent written notice of its intention to take such action at least ninety-six hours four (4) Business Days in advance (the “Takeover Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandismutandis (it being understood that each time any material revision or amendment to the terms of the Acquisition Proposal determined to be a Superior Proposal is made, and the four(4)-Business Day period shall be extended for an additional two (z2) in the case of an Intervening Event, a reasonably detailed description Business Days after notification of such Intervening Eventchange); (II) during the Takeover Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent regarding any adjustments or modifications to revise the terms of this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated proposed by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicableParent; and (III) at the end of the Takeover Notice Period, the Company Board shall have taken have, taking into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iiiSection 7.2(d)(ii) prior to the end of the Takeover Notice Period, and shall have thereafter determined in good faith thatfaith, after consultation with outside legal counselcounsel and financial advisor, based on the information then available, that such Acquisition Proposal continues to be a Superior Proposal and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect make a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law.
(iii) Notwithstanding anything in this Agreement to the contrary, or that the Company Board may, at any time prior to the time the Requisite Company Vote is obtained, effect a Change of Recommendation in response to an Intervening Event if: (A) the Company provides Parent three (3) Business Days’ prior written notice of its intention to take such Alternative Acquisition Agreement contemplated by clause action, which notice shall include all material information with respect to any such Intervening Event and a description of the Company Board’s rationale for such action; (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be during such three (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by 3)-Business Day period described in clause (B) of this Section 7.2(d)(iiiA), the Company shall have terminated negotiate in good faith with Parent regarding any adjustments or modifications to the terms of this Agreement proposed by Parent; and abandoned (C) at the Transactions end of the three (3)-Business Day period described in accordance with and pursuant to Section 9.3(bclause (A)). For the avoidance of doubt, the delivery, Company Board determines in good faith after consultation with its financial advisors and outside legal counsel (after taking into account any adjustments or modifications to the terms of itself, of any notice contemplated this Agreement proposed by this Section 7.2(dParent during the period described in clause (A)) will not constitute that the failure to make a Change of Recommendation or violate this Section 7.2(d)in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Baxter International Inc), Merger Agreement (Hill-Rom Holdings, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account subject to Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold(i) withhold or withdraw (or publicly propose or resolve to withhold or withdraw) the Company Recommendation or (ii) change, withdrawqualify, qualify amend or modify (or publicly propose or resolve to withholdchange, withdrawqualify, qualify amend or modify) the Company Recommendation in a manner adverse to ParentParent or Merger Sub;
(C) make any statementapprove, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, declare advisable or propose to approve, recommend or declare advisable (publicly declare advisable, or otherwise) any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or approve, recommend, declare advisable, enter into or publicly propose to approve, recommend, declare advisable or enter into (publicly propose to enter into, or otherwise) any Alternative Acquisition Agreement;
(D) within ten (10) Business Days following a written request by Parent following the date of any Acquisition Proposal or any material modification thereto is first published or sent, given or communicated to the shareholders of the Company, fail to publicly reaffirm the Company Recommendation; provided that if Parent requests in writing such reaffirmation at least five (5) Business Days prior to the Company Stockholders Meeting, by the date that is at least three (3) Business Days prior to the Company Stockholder Meeting (it being understood that the Company will have no obligation to make such reaffirmation on more than one occasion per Acquisition Proposal and one occasion per material modification thereto);
(E) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any material revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii), and after compliance in with Section 7.2(d)(iii) (except for failures to comply which are both immaterial and unintentional) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith complied with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).this
Appears in 2 contracts
Samples: Merger Agreement (Voya Financial, Inc.), Merger Agreement (Voya Financial, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii5.8(d)(iii) and taking into account Section 7.2(e5.8(e), none of the Company, the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):committee thereof shall:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Board Recommendation with respect to the transactions contemplated by this Agreement in a manner adverse to ParentPurchaser;
(CB) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case Company Meeting that is inconsistent with the Company Board Recommendation;
(C) fail to include the Company Board Recommendation in the Company Circular;
(D) at any time following the public disclosure receipt of an Acquisition Proposal, fail to reaffirm its approval or recommendation of this Agreement and the transactions contemplated by this Agreement as promptly publicly reaffirm the Company Recommendation as practicable (but in any event within three Business Days forty-eight hours) after receipt of any written request to do so from Parent);Purchaser; or
(E) approve or recommend, or publicly declare advisable, advisable any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii5.8(d)(iii) and in connection with actions permitted by Section 9.3(b6.3(b), neither the Company Board nor any committee thereof shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.25.8(d), prior to the Offer Acceptance Timetime the Shareholder Approval is obtained, if there has been no breach of the Company’s obligations set forth in this Section 5.8, the Company Board may: (A) effect a Change of Recommendation if (1) if (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredwithdrawn, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, that a failure to effect a Change of Recommendation would be, or would reasonably be expected to be, inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), and that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit authorize the Company to enter into or any of the Company’s Subsidiaries cause a Subsidiary thereof to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so); provided, however, that no such actions action may be taken unless and until: (I) the Company has given Parent Purchaser written notice at least ninety-six 120 hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c5.8(c), mutatis mutandis, and (z) in the case of with respect to such an Intervening EventAlternative Acquisition Agreement, a reasonably detailed description copy of the then-most current version of such Intervening EventAlternative Acquisition Agreement; (II) during the Notice Period, to the extent requested by ParentPurchaser, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent Purchaser and its Representatives to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii5.8(d)(iii) would not be satisfied or the such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed committed to by Purchaser and Parent in writing and any other information offered by Purchaser and Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iiiSection 5.8(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith thatfaith, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, that a failure to effect a Change of Recommendation would continue to be, or would reasonably be expected to continue to be, inconsistent with the directors’ fiduciary duties under applicable Law, or that Law and such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is continues to be an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c5.8(c) and this Section 7.2(d)(iii5.8(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii)60 hours; provided, the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For however, that, for the avoidance of doubt, no such new or revised Acquisition Proposal shall shorten the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dinitial Notice Period).
Appears in 2 contracts
Samples: Subscription Agreement (Cronos Group Inc.), Subscription Agreement (Altria Group, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii6.2(b)(ii) and taking into account Section 7.2(e6.2(c), the Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B1) withhold, withdraw, qualify or adversely modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
Recommendation, (C2) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation or fail to publicly state that the Acquisition is in the best interests of the Company Shareholders, within ten (but in any event within three 10) Business Days after receipt Buyer requests in writing that such action be taken, (or if the Company Shareholders Meeting is scheduled to be held within ten (10) Business Days, then within one (1) Business Day after Buyer requests), (3) fail to publicly announce, within five (5) Business Days after a tender offer or exchange relating to the securities of any written request to do so from Parent);
the Company shall have been commenced, an unqualified statement disclosing that the Company Board recommends rejection of such tender offer or exchange offer, or (E4) approve approve, endorse or recommend, or publicly declare advisablepropose to approve, endorse or recommend, any Acquisition Proposal (any of the actions described in clauses (1), (2), (3) or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend(4), or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementa “Change of Recommendation”); or
(FB) agreeexcept as expressly permitted by, authorize and after compliance with, Section 8.1(a)(vi), cause or commit permit the Company to do enter into any of the foregoing acquisition agreement, merger agreement or other similar definitive acquisition agreement (it being understood that any revisions other than a confidentiality agreement referred to the financial terms of, or any material revisions to, in Section 6.2(a) entered into in compliance therewith) relating to any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or (an “Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)”).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), Notwithstanding the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2foregoing, prior to the Offer Acceptance Timetime, but not after, the Company Shareholder Approval is obtained, the Company Board may: :
(A) effect a Change of Recommendation if, and only if, (1) if (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredwithdrawn, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, faith that based on the information then available and (x) after consultation with an independent its financial advisor of nationally recognized reputationand outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, and (y) after consultation with its outside legal counsel, tax advisors and other outside advisors it deems relevant, a failure to effect a Change of Recommendation in connection with such Acquisition Proposal would be inconsistent with a breach of the directors’ fiduciary duties under applicable Law andApplicable Law, (3) the Company Board intends to terminate this Agreement pursuant to Section 8.1(a)(vi) in the case of order to enter into an Alternative Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that Agreement in relation to such Acquisition Proposal constitutes and (4) the Company and the Company Board have complied with the applicable requirements of Section 6.2(e) (the actions described in this clause (A), a Superior Proposal“Qualifying Change of Recommendation”); and/or or
(B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, howeverif, that no such actions may be taken unless and until: (I) only if, the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that and the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent complied with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause requirements in Section 8.1(a)(vi).
(Biii) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii6.2(b), including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours requirements in Section 6.2(e) and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d8.1(a)(vi).
Appears in 2 contracts
Samples: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account subject to Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold(i) withhold or withdraw (or publicly propose or resolve to withhold or withdraw) the Company Recommendation or (ii) change, withdrawqualify, qualify amend or modify (or publicly propose or resolve to withholdchange, withdrawqualify, qualify amend or modify) the Company Recommendation in a manner adverse to ParentParent or Merger Sub;
(C) make any statementapprove, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, declare advisable or propose to approve, recommend or declare advisable (publicly declare advisable, or otherwise) any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or approve, recommend, declare advisable, enter into or publicly propose to approve, recommend, declare advisable or enter into (publicly propose to enter into, or otherwise) any Alternative Acquisition Agreement;
(D) within ten (10) Business Days following a written request by Parent following the date of any Acquisition Proposal or any material modification thereto is first published or sent, given or communicated to the shareholders of the Company, fail to publicly reaffirm the Company Recommendation; provided that if Parent requests in writing such reaffirmation at least five (5) Business Days prior to the Company Stockholders Meeting, by the date that is at least three (3) Business Days prior to the Company Stockholder Meeting (it being understood that the Company will have no obligation to make such reaffirmation on more than one occasion per Acquisition Proposal and one occasion per material modification thereto);
(E) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any material revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii), and after compliance in with Section 7.2(d)(iii) (except for failures to comply which are both immaterial and unintentional) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, if the Company has complied with this Section 7.2 (except for failures to comply which are both immaterial and unintentional), the Company Board may: (A) effect a Change of Recommendation (1) if an (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company after the date of this Agreement that was made in compliance with this Section 7.2 (except for failures to comply which are both immaterial and has not been withdrawn and receipt of unintentional), the Company Board determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal was is bona fide and such Acquisition Proposal is not as a result withdrawn prior to the Change of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect Recommendation or (y) an Intervening Event has occurred, occurred and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, that (x) a failure to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law andand (y), in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) take action to terminate this Agreement pursuant to, and in accordance with, Section 9.3(b), to cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that the Company Board determines in good faith that such Acquisition Proposal is bona fide and that such Acquisition Proposal constitutes a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) Agreement or agree, authorize or commit to do so); provided, however, that no such actions Change of Recommendation or action to terminate the Agreement pursuant to Section 9.3(b) to enter into an Alternative Acquisition Agreement may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours four (4) Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include include, (y) in the case of a Superior such an Acquisition Proposal, all the information required by Section 7.2(c), mutatis mutandisspecifying the identity of the Person or Group making such Superior Proposal, the material terms and conditions of such Superior Proposal and attaching the most current version of such agreement, and (z) in the case of an Intervening Event, a reasonably detailed reasonable description of such Intervening Event; and (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause instruct its Representatives legal and financial advisors to, negotiate in good faith with Parent and its Representatives throughout the Notice Period (to the extent Parent wishes to negotiate) to revise this Agreement so such that conditions set forth in clause (A)(2the failure of the Company Board to effect a Change of Recommendation or to take such action to terminate the Agreement pursuant to Section 9.3(b) of this Section 7.2(d)(iii) would not be satisfied or the to enter into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) Agreement, as applicable, would no longer be reasonably likely to be inconsistent with respect to a Superior Proposal, as applicablethe directors’ fiduciary duties under Applicable Law; and (III) at the end of the Notice Period, prior to taking action to effect a Change of Recommendation or to terminate the Agreement pursuant to Section 9.3(b) to enter into an Alternative Acquisition Agreement, the Company Board shall have taken into account any revisions to this Agreement proposed committed to by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith that, after consultation with outside legal counsel, that based on the information then available, and after consultation with an independent its financial advisor of nationally recognized reputationadvisor, a failure to effect a Change of Recommendation would continues to be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is continues to be an Alternative Acquisition Agreement with respect to a Superior Proposal, and as such the Agreement shall be terminated pursuant to Section 9.3(b), as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal (including any increase in the consideration payable pursuant thereto in response to any adjustments to the terms and conditions of this Agreement made by Parent) shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z2) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dBusiness Days).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Voya Financial, Inc.), Agreement and Plan of Merger (Benefitfocus, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), The Board of Directors of the Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(Bi) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation with respect to the Merger or (but in any event within three Business Days after receipt of any written request ii) approve, recommend or otherwise declare advisable or propose to do so from Parentapprove, recommend or otherwise declare advisable or resolve to approve, recommend or otherwise declare advisable (publicly or otherwise);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions the Board of Directors of the Company may take no position with respect to the financial terms of, or any material revisions to, any an Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new until the close of business as of the 10th Business Day after the commencement of such Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(ipursuant to Rule 14d-2 under the Exchange Act without such action being considered an adverse modification)).; or
(iiB) Except except as expressly permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b8.3(a), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement referred to in Section 6.2(a)(ii)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do soany Acquisition Proposal.
(iiiii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Company Requisite Vote is obtained, the Board may: of Directors of the Company and any committee thereof may (A) effect a Change of withhold, withdraw, qualify or modify the Company Recommendation or (1B) if (x) an unsolicited bona fide written approve, recommend or otherwise declare advisable any Acquisition Proposal is received by that the Board of Directors of the Company or any committee thereof determines in good faith is a Superior Proposal made after the date of this Agreement, in the case of clauses (A) and has not been withdrawn and receipt (B), if the Board of such Acquisition Proposal was not as a result Directors of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in or any material respect or (y) an Intervening Event has occurred, and (2) the Company Board committee thereof determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would such action could be inconsistent with required by the directors’ fiduciary duties under applicable Law and, (any action described in the case of an Acquisition Proposal contemplated by clause clauses (A)(1)(xA) of this Section 7.2(d)(iiiand (B), a “Change of Recommendation”), and thereafter may also take action pursuant to Section 8.3(a); provided, however, that such Acquisition Proposal constitutes the Company shall not effect a Change of Recommendation in connection with a Superior Proposal; and/or (BProposal or take any action pursuant to Section 8.3(a) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: until (Ix) the Company has given notifies Parent written notice in writing, at least ninety-six hours three Business Days in advance (the “Notice Period”)advance, which notice shall set forth in writing that the Company Company’s Board of Directors intends to consider whether effect a Change of Recommendation in connection with a Superior Proposal or to take such action and the basis therefor, and shall also include (ypursuant to Section 8.3(a) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, in either case subject only to compliance with this proviso, which notice shall specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and shall attach the agreement and all material related documentation providing for such Superior Proposal; (y) after providing such notice and prior to making such Change of Recommendation in connection with a Superior Proposal or taking any action pursuant to Section 8.3(a) with respect to a Superior Proposal, the Company shall negotiate in good faith with Parent during such three Business Day period (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement, the Financing Commitments and the Guarantees as applicablewould permit the Board of Directors of the Company not to effect a Change of Recommendation in connection with a Superior Proposal or to take such action pursuant to Section 8.3(a) in response to a Superior Proposal; and (IIIz) at the end Board of Directors of the Notice PeriodCompany shall have considered in good faith any changes to this Agreement, the Company Board shall have taken into account any revisions to this Agreement proposed Financing Commitments and the Guarantees offered in writing by Parent in writing and any other information offered a manner that would form a binding contract if accepted by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, Company and shall have determined in good faith thatthat the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect; provided that in the event the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, after consultation the Company shall notify Parent in writing of such modified Acquisition Proposal and shall again comply with outside legal counselthis Section 6.2(c), based on except that the information then available, Company’s advance written notice obligation shall be reduced to two Business Days (rather than the three Business Days otherwise contemplated by this Section 6.2(c)) and after consultation with an independent financial advisor of nationally recognized reputation, a failure the time the Company shall be permitted to effect a Change of Recommendation would be inconsistent in connection with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-the time that is two hours and Business Days after it has provided such written notice (z) prior to rather than the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), time that is the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice three Business Days otherwise contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d6.2(c)).
Appears in 2 contracts
Samples: Merger Agreement (Wolverine World Wide Inc /De/), Merger Agreement (Collective Brands, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. The Board of Directors of any party hereto shall not:
(i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, the other parties hereto the recommendation of its board of directors with respect to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition AgreementMerger; or
(Fii) agreeexcept as expressly permitted by, authorize and after compliance with, Sections 6.2 and 8.3(a) hereof, cause or commit permit itself to do enter into any letter of the foregoing intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (it being understood that any revisions other than confidentiality agreement(s) referred to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or in Section 6.2(b) entered into in compliance with this Section 6.2) (an “Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii”) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or relating to any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance TimeAgreement, the Company board of directors of the party receiving such Alternative Proposal, based on the recommendation of its Board may: (A) effect a Change of Recommendation (1) if Directors, may (x) an unsolicited bona fide written Acquisition Proposal is received by withhold, withdraw, qualify or modify the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company recommendation of its obligations set forth in board of directors and/or authorize itself to terminate this Agreement pursuant to Section 7.2(a8.1(d)(ii) in any material respect or (y) approve, recommend or otherwise declare advisable any Acquisition Proposal not solicited, entered into or agreed to in breach of this Section 6.2 and made after the date of this Agreement and/or authorize itself to terminate this Agreement pursuant to Section 8.1(d)(ii) or enter into an Intervening Event has occurredAlternative Acquisition agreement with respect to such Acquisition Proposal, and (2) the Company Board in each case, if its board of directors determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would do so could be inconsistent with the directors’ its fiduciary duties obligations under applicable Law and, in the case Laws (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no prior to making any Change of Recommendation, (i) such actions may be taken unless party and until: (I) its board of directors shall give the Company has given Parent other parties hereto at least five Business Days written notice at least ninety-six hours in advance (the “Notice Periodof Superior Proposal”), which notice shall set forth in writing ) advising that the Company Board such party currently intends to consider whether to take such action and the basis therefor, including all required information under Section 6.2(f), (ii) during the five Business Day period following Parent’s and shall also include (y) in Merger Sub’s receipt of the case Notice of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company party shall, and shall cause its Representatives to, negotiate with the other parties hereto in good faith with Parent (to revise the extent such other parties desire to negotiate) to make adjustments in the terms and conditions of this Agreement so that conditions set forth in clause (A)(2) the terms of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) Merger are more favorable to the Party seeking a Change of this Section 7.2(d)(iii) would no longer be with respect to a Superior ProposalRecommendation, as applicable; and (IIIiii) at following the end of the Notice Periodfive Business Day period, the Company Board such party shall have taken determine in good faith, taking into account any revisions changes to this Agreement proposed by Parent in writing and any by the other information offered by Parent in writing parties in response to such notice contemplated by clause (I) the Notice of this 7.2(d)(iii) prior Superior Proposal or otherwise, that the Acquisition Proposal giving rise to the end Notice of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, Superior Proposal continues to constitute a failure to effect basis for a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Recommendation. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes 6.2 and shall require a new Notice of the Notice Period, except that subsequent Superior Proposal to the initial Notice Period, other parties as contemplated by Section 6.2(f); and such party receiving the Notice Period Acquisition Proposal shall be reduced required to seventy-two hours and (z) prior to comply with the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) requirements of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance 6.2 fully with and pursuant respect to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)such amended Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (EastBridge Investment Group Corp)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Subject to Section 7.2(d)(iii) and taking into account Section 7.2(e6.3(e), the Company Board shall not (it being understood that the determination, in itself, by and each committee of the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal shall not:
(so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iiii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) make, withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statementParent or Merger Sub, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Board Recommendation;
, (DB) following the public disclosure of approve, authorize, endorse, adopt or recommend (publicly or otherwise) (or publicly propose to approve, authorize, endorse, adopt or recommend) an Acquisition Proposal, (C) fail to promptly recommend, in the solicitation/recommendation statement on Schedule 14D-9, against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act (other than any tender offer or exchange offer by Parent or Merger Sub) within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by the Company’s stockholders) within five (5) Business Days after the commencement of such tender offer or exchange offer or (D) if an Acquisition Proposal has been publicly disclosed, fail to publicly recommend against any such Acquisition Proposal and publicly reaffirm the Company Board Recommendation upon Parent’s written request, in each case, within five (but in any event within three 5) Business Days after receipt public disclosure of any written the Acquisition Proposal; provided that Parent may make such request only once with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any such Acquisition Proposal or other proposal that would reasonably be expected to lead to an unless such Acquisition Proposal or approve or recommendis subsequently materially modified, or publicly declare advisable or publicly propose to enter intoin which case Parent may make such request once each time such material modification is made (any action described in clauses (A) through (D), any Alternative Acquisition Agreementa “Change of Recommendation”); or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iiiother than any Acceptable Confidentiality Agreement entered into in accordance with Section 6.3(b)) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions relating to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (TherapeuticsMD, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. Except as set forth in Section 5.2(e) and this Section 5.2(d), neither the Board of Directors of the Company nor any committee thereof shall (i) Except as permitted by Section 7.2(d)(iii(A) and taking into account Section 7.2(ewithhold or withdraw (or qualify, change, amend or modify in a manner adverse to Parent or Merger Sub), or publicly propose to withhold or withdraw (or qualify, change, amend or modify in a manner adverse to Parent or Merger Sub), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutesRecommendation, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
Proxy Statement, (B) withholdapprove or adopt, withdrawor recommend the approval or adoption of, qualify or modify (or publicly propose to recommend, approve or resolve to withholdadopt, withdraw, qualify any Acquisition Proposal or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of from and after the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition ProposalNo-Shop Period Start Date, fail to promptly publicly make or reaffirm the Company Recommendation (but in any event within three ten Business Days after receipt of any Parent’s written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to following receipt of an Acquisition Proposal or approve or recommend(any action described in this clause (i) being referred to as a “Change of Recommendation”, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions a customary “stop, look and listen” communication by the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) or the Special Committee pursuant to Rule 14d-9(f) promulgated under the financial terms of, Exchange Act shall not constitute a Change of Recommendation) or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b)authorize, the Company Board shall not cause or permit the Company or any of its Subsidiaries or Representatives to execute or enter into any letter of intent (binding or non-binding) or similar agreement or arrangement or enter into any agreement or agreement in principle with respect to any Acquisition Proposal, other than any Acceptable Confidentiality Agreement (each, an “Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Agreement”). Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, at any time prior to the Offer Acceptance Time, obtaining the Company Board may: (A) effect a Change of Recommendation (1) Requisite Vote, if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and Intervening Event has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect occurred or (y) an Intervening Event has occurred, and (2) the Company receives an Acquisition Proposal not solicited in violation of this Section 5.2 that the Board determines of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) or the Special Committee has determined in good faith, faith after consultation with its financial advisor and outside legal counsel constitutes a Superior Proposal, then the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) and the Special Committee may (1) in the case of either clause (x) or clause (y), make a Change of Recommendation if the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) or the Special Committee has determined in good faith after consultation with its financial advisor and outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such and (2) in the case of clause (y), cause the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal and terminate this Agreement pursuant to Section 7.3(a); provided that the Board of Directors of the Company shall not make any Change of Recommendation under either clause (x) or (y) or cause the Company to terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal unless:
(i) The Company shall have complied in all respects with its obligations under this Section 5.2(d);
(ii) the Company shall have provided prior written notice to Parent, at least four (4) Business Days in advance of making such Change of Recommendation or such termination (such period, the “Negotiation Period”), advising Parent of the intention to effect a Change of Recommendation or terminate this Agreement, which notice shall specify in detail the basis for the Change of Recommendation or termination and, in the case of a Superior Proposal, the identity of the party making such Superior Proposal and the financial and other material terms and conditions thereof and include copies of the final forms of all relevant documents relating to such Superior Proposal; provided, that in the event there is any material amendment to the terms of any such Superior Proposal (including any revision in the amount, form or mix of consideration proposed to be payable to the Company’s stockholders pursuant to such Superior Proposal), the Company shall have provided to Parent a notice of such material amendment and there shall be a new two (2) Business Days period following such notice during which the Company shall negotiate with Parent or otherwise comply again with the requirements of this Section 5.2(d) and the Company shall not make any Change of Recommendation prior to the end of any such Negotiation Period as so extended;
(iii) during the Negotiation Period, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith, for so long as Parent continues to negotiate in good faith, with respect to changes to the terms and conditions of this Agreement or the transactions contemplated hereby (or as to other proposals made by clause Parent);
(iv) after so negotiating with Parent and Merger Sub during the Negotiation Period, the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) or the Special Committee shall have considered in good faith any and all changes to this Agreement and the transactions contemplated hereby offered by Parent (or other proposals made by Parent), and shall have concluded, after consultation with its independent financial advisor and outside legal counsel, (A) in the event the determination by the Board of Directors of the Company or the Special Committee pursuant to this Section 5.2(d) is in response to a Superior Proposal, that such Superior Proposal would continue to constitute a Superior Proposal even if such changes or other proposals were to be given effect, provided that, if any material amendment or revision is made to the Acquisition Proposal that the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) or the Special Committee has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent with respect to each such successive amendment or revision and to comply with the requirements of this Section 5.2 with respect to such new written notice and the Negotiation Period shall recommence, or (B) in the event the determination by the Board of Directors of the Company or the Special Committee pursuant to this Section 5.2(d) is in response to an Intervening Event, that such changes would not obviate the need for a Change of Recommendation in response to such Intervening Event; and
(v) in the event of a termination of this Section 7.2(d)(iii) is Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have validly terminated this Agreement and abandoned pursuant to Section 7.3(a) (including paying the Transactions Termination Fee in accordance with and pursuant Section 7.5(a) prior to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dconcurrently with such termination).
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case Company Stockholders Meeting that is inconsistent with the Company Recommendation;
(D) with respect to an Acquisition Proposal initiated through a tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, take any action or make any recommendation or public statement in connection therewith other than an unequivocal recommendation against such offer;
(E) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation as promptly as reasonably practicable (but in any event within three Business Days after receipt of any written request to do so from Parent);
(EF) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(FG) agree, authorize or commit to do any of the foregoing (it being understood that together with any revisions to of the financial terms ofactions set forth in the foregoing clauses (A), or any material revisions to(B), any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be (C), (D), (E) and (F), a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes “Change of this Section 7.2(d)(i)Recommendation”).
(ii) Except as expressly permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.27.2(d), prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, the Company Board may: (A) may effect a Change of Recommendation (1or terminate this Agreement pursuant to Section 9.3(b) if (xA) an unsolicited a bona fide written Acquisition Proposal that did not result from or in connection with a breach of the obligations set forth in this Section 7.2 is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2B) the Company Board determines in good faith, after consultation with outside legal counselcounsel and financial advisors, that as applicable, based on the information then available and after consultation with an independent financial advisor of nationally recognized reputationavailable, that (x) in the case of an Acquisition Proposal, that such Acquisition Proposal constitutes a Superior Proposal and (y) a failure to effect a Change of Recommendation would be or terminate this Agreement pursuant to Section 9.3(b) in response to such Acquisition Proposal or Intervening Event, as applicable, is inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do soLaw; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours five Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and a reasonably detailed description of the basis therefor, and shall also include (y) include, in the case of a Superior an Acquisition Proposal, all information required by Section 7.2(c), mutatis mutandismutandis and, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions the condition set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer not be with respect to a Superior Proposal, as applicablesatisfied; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this Section 7.2(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith thatfaith, after consultation with outside legal counselcounsel and financial advisors, as applicable, based on the information then available, that (x) in the case of an Acquisition Proposal, such Acquisition Proposal continues to constitute a Superior Proposal and after consultation with an independent financial advisor of nationally recognized reputation, (y) a failure to effect a Change of Recommendation or terminate this Agreement pursuant to Section 9.3(b) would continue to be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be Law (it being understood that (y) any material revisions amendment or modification to the economic terms of any such Acquisition Proposal shall be deemed material and shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the initial five-day Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dthree Business Days).
Appears in 1 contract
Samples: Merger Agreement (LHC Group, Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii7.3(b)(ii) and taking into account Section 7.2(e7.3(c), the Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B1) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make Parent in any statementmaterial respect, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
Board Recommendation with respect to the Merger, (D2) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Board Recommendation or fail to publicly state that the Merger is in the best interests of the Company Shareholders, within ten business days after Parent requests in writing that such action be taken, (but in any event or if the Company Shareholders Meeting is scheduled to be held within three Business Days two business days, then within one business day after receipt Parent requests), (3) fail to publicly announce, within ten business days after a tender offer or exchange relating to the securities of any written request to do so from Parent);
the Company shall have been commenced, an unqualified statement disclosing that the Company Board recommends rejection of such tender offer or exchange offer, or (E4) approve approve, endorse or recommend, or publicly declare advisablepropose to approve, endorse or recommend, any Acquisition Proposal or other proposal that would reasonably be expected to lead (it being understood that, if the Company Board takes no position with respect to an Acquisition Proposal initiated through a tender or approve or recommend, or publicly declare advisable or publicly propose exchange offer pursuant to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any Rule 14d-2 under the Exchange Act until the earlier of the foregoing (it being understood that any revisions close of business as of the day prior to the financial terms of, or any material revisions to, any Company Shareholders Meeting and the tenth business day after the commencement of such Acquisition Proposal or Alternative Acquisition Agreement such failure to take a position shall not in and of itself be deemed considered adverse to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, Parent for purposes of this Section 7.2(d)(i7.3(b)(i)(A)) (any of the actions described above, a “Change of Recommendation”); or
(B) except as expressly permitted by, and after compliance with, Section 9.3(a), cause or permit the Company to enter into any acquisition agreement, merger agreement or other similar definitive acquisition agreement (other than a confidentiality agreement referred to in Section 7.3(a) entered into in compliance therewith) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Company Shareholder Approval is obtained, the Company Board may: (A) effect a Change of Recommendation if (1) if (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredwithdrawn, and (2) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that based on the information then available (x) such Acquisition Proposal constitutes a Superior Proposal, and after consultation with an independent financial advisor of nationally recognized reputation, that (y) a failure to effect a Change of Recommendation in connection with such Acquisition Proposal would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law andLaw, and (3) the Company Board intends to terminate this Agreement pursuant to Section 9.3(a) in the case of order to enter into an Alternative Acquisition Agreement in relation to such Acquisition Proposal contemplated by (the actions described clause (A)(1)(xA) of this Section 7.2(d)(iii7.3(b)(ii), that such Acquisition Proposal constitutes a Superior Proposal“Qualifying Change of Recommendation”); and/or or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: but in each case only after complying with (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (yi) in the case of a Superior Proposalclause (A) above, all information required by any applicable requirements in Section 7.2(c), mutatis mutandis, 7.3(e) and (zii) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this above, any applicable requirements in Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any 9.3(a). Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii7.3(b), including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours requirements in Section 7.3(e) and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d9.3(a).
Appears in 1 contract
Samples: Merger Agreement (Ladenburg Thalmann Financial Services Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the The Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, directly or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, indirectly: except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate provided in this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) 6.2, withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) ), the Company Recommendation in a manner adverse with respect to Parent;
(C) make any statementthe Offer and the Merger; or except as expressly permitted by, directly and after compliance with, this Section 6.2, cause or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with permit the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected propose to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or publicly propose other agreement (other than a confidentiality agreement referred to enter into, any in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an "Alternative Acquisition Agreement; or
(F") agree, authorize or commit relating to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance TimePurchase Date, if the Company receives a Superior Proposal, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by may withhold, withdraw, qualify or modify the Company and has not been withdrawn and receipt of such Acquisition Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal made after the date hereof that was not as a result solicited, initiated, encouraged or facilitated in breach of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredthis Agreement, and (2) if the Company Board determines in good faith, after consultation with receiving legal advice from outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure it is necessary to effect a Change of Recommendation would be inconsistent do so to comply with the directors’ ' fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries foregoing, or any public proposal to enter into an Alternative Acquisition Agreement with respect to do any of the foregoing, being a Superior Proposal (and "Change of Recommendation"). No Change of Recommendation may be made until after at least 48 hours following Parent's receipt of notice from the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing advising it that the Company Board currently intends to consider whether to take such action and the basis therefortherefore, and shall also include (y) including the information under Section 6.2(f). In determining whether to make a Change of Recommendation in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect response to a Superior Proposal, as applicable; and (III) at the end of the Notice PeriodProposal or otherwise, the Company Board shall have taken into account consider any revisions changes to the terms of this Agreement proposed by Parent in writing and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any notice. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii)6.2, including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced notice period referred to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of in this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)6.2.
Appears in 1 contract
Samples: Merger Agreement (Varsity Group Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except The Seller Board and each committee of the Seller Board will not, directly or indirectly:
(1) except as expressly permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) 6.2, withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;Buyer, the Seller Board Recommendation with respect to the Transactions, (2) approve, propose to approve, resolve to approve, recommend or otherwise declare advisable (publicly or otherwise), any Acquisition Proposal, or (3) fail to publicly reaffirm the Seller Board Recommendation, including by not publicly supporting the Transactions in a director’s individual capacity, within five Business Days after Buyer so requests in writing; or
(B) except as expressly permitted by, and after compliance with, Section 8.3(a) hereof, cause or permit Seller to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other Contract (other than a confidentiality agreement referred to in Section 6.2(b) entered into in compliance with Section 6.2(b)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal.
(ii) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the End Date, the Seller Board may withhold, withdraw, qualify or modify the Seller Board Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal that was not solicited, initiated, knowingly facilitated or knowingly encouraged in breach of this Agreement (a “Change of Recommendation”) or may also take action pursuant to Section 8.3(a), if the Seller Board determines in good faith based on information then available, after consultation with outside legal counsel and its financial advisor, that such Acquisition Proposal is a Superior Proposal and the failure to take such action would constitute a breach of directors’ fiduciary duties under applicable Law; provided, however, that Seller will not effect a Change of Recommendation in connection with a Superior Proposal, or take any action pursuant to Section 8.3(a) with respect to a Superior Proposal unless: (A) Seller notifies Buyer in writing, five Business Days in advance, that it intends to effect a Change of Recommendation in connection with a Superior Proposal, or to take action pursuant to Section 8.3(a) with respect to a Superior Proposal, which notice will specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and attach the most current version of the agreement reflecting such terms and conditions; (B) after providing such notice and prior to making such Change of Recommendation in connection with a Superior Proposal, or taking any action pursuant to Section 8.3(a) with respect to a Superior Proposal, Seller will negotiate in good faith with Buyer during such five Business Day period (to the extent that Buyer desires to negotiate) to make such revisions to the terms of this Agreement or consider a possible alternative transaction with Buyer so that the Acquisition Proposal that is the subject of the notice ceases to be a Superior Proposal; and (C) make the Seller Board will have considered in good faith any statement, directly or indirectly, changes to any Person beneficially owning five percent or more this Agreement offered in writing by Buyer and will have determined in good faith (after consultation with its outside legal counsel and financial advisor) that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Buyer were to be given effect; provided that Seller will not effect a Change of the outstanding Shares or any public statement Recommendation in connection with a Superior Proposal, or take any action pursuant to Section 8.3(a) with respect to a Superior Proposal, prior to the Transactions, in each case time that is inconsistent with five Business Days after it has provided the Company Recommendation;
written notice required by clause (DA) following above; provided, further, that in the public disclosure of an event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, fail Seller will provide written notice of such modified Acquisition Proposal and will again comply with this Section 6.2(c), except that the deadline for such new written notice will be reduced to promptly publicly reaffirm two Business Days (rather than the Company five Business Days otherwise contemplated by this Section 6.2(c)) and the txxx Xxxxxx will be permitted to effect a Change of Recommendation (but in any event within three connection with a Superior Proposal, or to take action pursuant to Section 8.3(a) with respect to a Superior Proposal, will be reduced to the time that is two Business Days after receipt it has provided such written notice (rather than the time that is five Business Days otherwise contemplated by this Section 6.2(c)). A Change of any written request to do so from Parent);Recommendation may not be effected after the End Date.
(Eiii) approve A Change of Recommendation may also be made at any time prior to the End Date if:
(A) there shall occur or recommendarise after the date of this Agreement a material and fundamental development or material and fundamental change in circumstances that relates to Seller that does not relate to any Acquisition Proposal (any such material development or material change in circumstances unrelated to an Acquisition Proposal being referred to in this Agreement as an “Intervening Event”) provided, however, that in no event shall any of the following constitute or publicly declare advisablebe deemed to contribute to or otherwise be taken into account in determining whether there has been, an Intervening Event: (1) the receipt, existence or terms of any Acquisition Proposal or other any inquiry, offer, request or proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommendProposal, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do the consequences of any of the foregoing foregoing, (it being understood 2) any change in the economy or financial markets generally in the United States or any other country or any change that is the result of acts of war, sabotage or terrorism or of natural disasters, (3) any change that is the result of factors generally affecting the health care industries, (4) any change in Law or in United States generally accepted accounting principles after the date of this Agreement, (5) any change in the price and/or trading volume of the equity securities of Seller (or of the equity securities of any Subsidiary of the Buyer or of Seller) on the NASDAQ or any other market in which such securities are quoted for purchase and sale (provided that, the exception in this clause shall not prevent or otherwise affect a determination that any revisions change, effect, circumstance or development underlying such change has resulted in, or contributed to, an Intervening Event, to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes extent not otherwise excluded from the definition of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b“Intervening Event”), the Company Board shall not cause (6) Seller or permit the Company its Subsidiaries failing to meet any internal or published budgets, projections, forecasts or predictions of financial performance or integration synergies for any period, including as a result of any failure by Seller or any of its Subsidiaries to realize the anticipated benefits of any product launch, initiative or roll-out or other marketing initiative, and (7) the opportunity for Seller to acquire (by merger, joint venture, partnership, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, or businesses or enter into an Alternative Acquisition Agreement any licensing, collaboration or agreesimilar arrangements, authorize or commit to do so.with any third party;
(iiiB) Notwithstanding anything to neither Seller nor any Representative of Seller had any Knowledge of such Intervening Event or, as of the contrary set forth in date of this Section 7.2Agreement, could reasonably foresee that such Intervening Event would occur;
(C) at least five Business Days prior to the Offer Acceptance Time, date of any meeting of the Company Seller Board may: (Aor any committee thereof) effect at which the Seller Board (or committee) will consider whether such Intervening Event may require a Change of Recommendation (1) if (x) an unsolicited bona fide Recommendation, Seller provides Buyer with a written Acquisition Proposal is received by notice specifying the Company date and has not been withdrawn and receipt time of such Acquisition Proposal was not as meeting, the reasons for holding such meeting and a result description of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or such Intervening Event;
(y) an Intervening Event has occurred, and (2D) the Company Seller Board determines in good faith, after consultation with Seller’s outside legal counselcounsel and its financial advisor(s), that, in light of such Intervening Event, the failure to make a Change of Recommendation, if this Agreement were not amended or an alternative transaction with Buyer were not entered into, would constitute a breach of the directors’ fiduciary duties under applicable Law;
(E) a Change of Recommendation is not made at any time within the period of five Business Days after Buyer receives written notice from Seller confirming that based on the information then available and Seller Board has determined that the failure to make a Change of Recommendation in light of such Intervening Event would constitute a breach of the directors’ fiduciary duties under applicable Law;
(F) during such five Business Day period, if requested by Buyer, Seller engages in good faith negotiations with Buyer to amend this Agreement or enter into an alternative transaction with Buyer so that the failure to make a Change of Recommendation in light of such Intervening Event would not constitute a breach of the directors’ fiduciary duties under applicable Law; and
(G) at the end of such five Business Day period, the Seller Board determines in good faith, after consultation with an independent Seller’s outside legal counsel and its financial advisor of nationally recognized reputationadvisor(s), that a the failure to effect make a Change of Recommendation would be inconsistent with constitute a breach of the directors’ fiduciary duties under applicable Law and, in light of such Intervening Event (taking into account any definitive written proposal submitted to Seller by Buyer to amend this Agreement or enter into an alternative transaction with Buyer as a result of the case of an Acquisition Proposal negotiations contemplated by clause “(A)(1)(x) of this Section 7.2(d)(iiiF), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d” above).
Appears in 1 contract
Samples: Asset Purchase Agreement (Alliqua BioMedical, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by expressly provided in this Section 7.2(d)(iii) and taking into account Section 7.2(e7.2(b), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) each committee thereof will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(Bi) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent, the Company Recommendation (it being understood that the Company Board may take no position with respect to an Acquisition Proposal that is structured as a tender offer or exchange offer until the close of business on the tenth Business Day after the commencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act without such action being considered an adverse modification);
(Cii) adopt, approve, or recommend (or publicly propose or resolve to adopt, approve or recommend) any Acquisition Proposal;
(iii) fail to include the Company Recommendation in the Proxy Statement;
(iv) make any statement, directly recommendation or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal that is structured as a tender offer or approve exchange offer (except for a recommendation against any such offer or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any a customary “stop-look-and-listen” communication of the foregoing type contemplated by Rule 14d-9(f)); provided, that, if any disclosure or other action taken pursuant to this clause (iv) includes a Change of Recommendation, such action or disclosure shall be deemed to be a Change of Recommendation (it being understood that any revisions public statement that includes only factual statements shall not be a statement inconsistent with the Company Recommendation); or
(v) in the event an Acquisition Proposal has been publicly announced or publicly disclosed, fail to reaffirm the financial terms ofCompany Recommendation following a written request by Parent to do so (provided that the Company Board shall only be required to make such reaffirmation two times for any specific Acquisition Proposal (but if such Acquisition Proposal is materially amended, modified or any material revisions tosupplemented, any Acquisition Proposal reaffirmation by the Company Board prior to such material amendment, modification or Alternative Acquisition Agreement supplement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, disregarded for purposes of this Section 7.2(d)(iproviso)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause on or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, later of the Company Board may: (A) effect a Change fifth Business Day after the delivery of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received such request by the Company Parent and has not been withdrawn and receipt ten Business Days following public announcement or disclosure of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) Proposal, but in any material respect or (y) an Intervening Event has occurredevent, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) Business Days prior to the Company Stockholders Meeting (or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause adjournment or postponement thereof) (Bany action in the foregoing clauses (i)-(v) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).“
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Subject to Section 7.2(d)(iii) and taking into account Section 7.2(e5.3(e), the Company Board shall not (it being understood that the determination, in itself, by and each committee of the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):shall not:
(i) (A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
Parent or Merger Subsidiary, the Company Board Recommendation with respect to the Merger or fail to include the Company Board Recommendation in the Proxy Statement, (B) approve, adopt or recommend (publicly or otherwise) an Acquisition Proposal or Competing Acquisition Transaction, (C) make any statement, directly or indirectly, fail to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactionsrecommend, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposala solicitation/recommendation statement on Schedule 14D-9, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, against any Acquisition Proposal or Competing Acquisition Transaction subject to Regulation 14D promulgated under the Exchange Act (other proposal that would reasonably be expected to lead to an than any other tender offer or exchange offer by Parent or Merger Subsidiary) within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such Acquisition Proposal or approve Competing Acquisition Transaction or recommend(D) within five (5) Business Days following a written request by the Parent for the Company to reaffirm the Company Board Recommendation following the date any Acquisition Proposal or any material modification thereto is first published or sent to the stockholders of the Company, fail to issue a press release that reaffirms the Company Board Recommendation, provided that the Company shall not be required to issue more than one such press release with respect to each such Acquisition Proposal or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementmaterial modification thereof; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries Company Subsidiary to enter into an Alternative Acquisition Agreement (other than any Acceptable Confidentiality Agreement entered into in accordance with respect Section 5.3(b)) relating to a Superior Proposal any Acquisition Proposal, or (and the Company may enter into B) terminate, amend, release, modify or cause a Subsidiary thereof fail to enter into such an Alternative Acquisition use commercially reasonable efforts to enforce any provision (including any standstill), or grant any wavier or request under any confidentiality, standstill or similar agreement (including any Acceptable Confidentiality Agreement) or agree, authorize or commit to do so); provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (will be permitted to waive any provision of any such agreement to the “Notice Period”), which notice shall set forth in writing extent that such provision prohibits or purports to prohibit a proposal from being made to the Company Board or the party to such agreement from requesting that the Company Board intends waive or amend such agreement to consider whether permit a proposal from being made to take such the Company Board. Any action and the basis therefor, and shall also include described in clauses (yi) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2ii) of this Section 7.2(d)(iii5.3(d) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to is a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a “Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)Recommendation”.
Appears in 1 contract
Samples: Merger Agreement (Bazaarvoice Inc)
No Change of Recommendation or Alternative Acquisition Agreement. Except as set forth in Section 6.03(d) and this Section 6.03(c), neither the Board of Directors of the Company nor any committee thereof shall (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withholdchange, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation , or publicly propose to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent;
Parent or Merger Subsidiary, the Company Board Recommendation, (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) make approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, or recommend the approval or adoption of, any statementAcquisition Proposal, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of if a tender offer or exchange offer that constitutes an Acquisition ProposalProposal is commenced, fail to promptly publicly recommend against acceptance of such tender offer or exchange offer by the Company’s stockholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by the Company’s stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after the commencement thereof or (E) fail to publicly reaffirm the Company Board Recommendation following any Acquisition Proposal having been publicly made, proposed or communicated (but in any event and not publicly withdrawn) within three ten (10) Business Days after receipt of Parent so requests in writing (any written request action described in this clause (i) being referred to do so from Parent);
(Eas an “Adverse Recommendation Change”) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b)authorize, the Company Board shall not cause or permit the Company or any of its Subsidiaries or Representatives to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar document, contract, agreement or arrangement with respect to any Acquisition Proposal, other than any Acceptable Confidentiality Agreement entered into in compliance with this Section 6.03 (each, an “Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Agreement”). Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, at any time prior to the Offer Acceptance Time, obtaining the Company Board may: Stockholder Approval (A) effect a Change of Recommendation (1) but in no event after the Company Stockholder Approval is obtained), if (x) an unsolicited Intervening Event has occurred or (y) the Company receives a bona fide written Acquisition Proposal is received by that was not obtained in violation of this Section 6.03 that the Board of Directors of the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of determined, in its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faithfaith judgment, after consultation with its financial advisor and outside legal counsel constitutes a Superior Proposal, then the Board of Directors of the Company may (1) in the case of either subclause (x) and (y), make an Adverse Recommendation Change if the Board of Directors of the Company has determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation take such action would be inconsistent with the directors’ fiduciary duties under applicable Law andApplicable Law, or (2) in the case of an Acquisition Proposal contemplated by clause subclause (A)(1)(x) of this Section 7.2(d)(iiiy), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and pursuant to Section 10.01(d)(i); provided, that the Board of Directors of the Company may enter into shall not make any Adverse Recommendation Change pursuant to either subclause (x) or (y) or cause a Subsidiary thereof the Company to terminate this Agreement to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) unless prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).taking such action:
Appears in 1 contract
Samples: Merger Agreement (Ingram Micro Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii6.2(b)(ii) and taking into account Section 7.2(e6.2(c), the Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B1) withhold, withdraw, qualify or adversely modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse Recommendation, (2) fail to Parent;
(C) make recommend against acceptance of any statement, directly tender offer or indirectly, exchange relating to any Person beneficially owning five percent or more the securities of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
within ten (D10) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt commencement of any written request to do so from Parent);
such offer, or (E3) approve approve, endorse or recommend, or publicly declare advisablepropose to approve, endorse or recommend, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend(any of the actions described in clauses (1), (2), or publicly declare advisable or publicly propose to enter into(3), any Alternative Acquisition Agreementa “Change of Recommendation”); or
(FB) agreeExcept in circumstances that would allow the Company to terminate this Agreement pursuant to Section 8.1(a)(vi), authorize cause or commit permit the Company to do enter into any of the foregoing acquisition agreement, merger agreement or other similar definitive acquisition agreement (it being understood that any revisions other than a confidentiality agreement referred to the financial terms of, or any material revisions to, in Section 6.2(a) entered into in compliance therewith) relating to any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or (an “Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)”).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), Notwithstanding the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2foregoing, prior to the Offer Acceptance Timetime, but not after, the Company Shareholder Approval is obtained, the Company Board may: :
(A) effect a Change of Recommendation if, and only if, (1) if (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredwithdrawn, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, faith that based on the information then available and (x) after consultation with an independent its financial advisor of nationally recognized reputationand outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, and (y) after consultation with its outside legal counsel and other outside advisors it deems relevant, a failure to effect a Change of Recommendation in connection with such Acquisition Proposal would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law andApplicable Law, (3) the Company Board intends to terminate this Agreement pursuant to Section 8.1(a)(vi) in the case of order to enter into an Alternative Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that Agreement in relation to such Acquisition Proposal constitutes and (4) the Company and the Company Board have complied with the applicable requirements of Section 6.2(e)(ii) (the actions described in this clause (A), a Superior Proposal“Qualifying Change of Recommendation”); and/or or
(B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, howeverif, that no such actions may be taken unless and until: (I) only if, the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that and the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent complied with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause requirements in Section 8.1(a)(vi).
(Biii) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii6.2(b), including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours requirements in Section 6.2(e) and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d8.1(a)(vi).
Appears in 1 contract
Samples: Securities Exchange Agreement (Arcadia Biosciences, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii5.2(e)(ii), Section 5.2(e)(iii) and taking into account or Section 7.2(e5.2(f), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iiiA) and taking into account Section 7.2(e)) will not constitute effect a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
Recommendation, (B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or Proposal, (C) approve, recommend, enter into or publicly declare advisable or publicly propose to enter into, into any Alternative Acquisition Agreement; or
Agreement or (FD) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i))foregoing.
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, at any time prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, in response to an Acquisition Proposal that did not result from a material breach by the Company, its Wholly Owned Subsidiaries or its or their respective Representatives of Section 5.2(a) or Section 5.2(b) (including, for the avoidance of doubt, any failure by any such Representatives to follow an instruction required to be given by the Company thereunder) and that the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurreddetermines, and (2) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that based on constitutes a Superior Proposal, the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to Company Board may (x) effect a Change of Recommendation would be inconsistent or (y) terminate this Agreement pursuant to and in accordance with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(xSection 7.3(b) of this Section 7.2(d)(iii), that and substantially concurrently with such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to termination enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do soProposal; provided, however, that no prior to taking any such actions may be taken unless and untilaction: (IA) the Company has given must give Parent written notice of its intention to take such action at least ninety-six hours four (4) Business Days in advance (the “Takeover Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c5.2(d), mutatis mutandis, and mutandis (z) in it being understood that each time any material revision or material amendment to the case of an Intervening Event, a reasonably detailed description terms of such Intervening EventAcquisition Proposal is made, the Takeover Notice Period shall be extended for an additional three (3) Business Days); (IIB) during the Takeover Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate negotiates in good faith with Parent regarding any adjustments or modifications to revise the terms of this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated proposed by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicableParent; and (IIIC) at the end of the Takeover Notice Period, the Company Board shall have taken determines in good faith, after consultation with its financial advisor and outside legal counsel (after taking into account any written revisions to this Agreement proposed by Parent in writing Pxxxxx and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Takeover Notice Period), that such Acquisition Proposal continues to be a Superior Proposal and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect make a Change of Recommendation or terminate this Agreement and substantially concurrently with such termination enter into an Alternative Acquisition Agreement would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition .
(iii) Notwithstanding anything in this Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Periodcontrary, the Notice Period shall be reduced to seventy-two hours and (z) Company Board may, at any time prior to the time the Requisite Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii)Vote is obtained, the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute effect a Change of Recommendation in response to an Intervening Event if: (A) the Company provides Parent with four (4) Business Days’ prior written notice of its intention to take such action, which notice shall include the material information considered by the Company Board with respect to such Intervening Event; (B) during such four (4) Business Day period, to the extent requested by Parent, the Company negotiates in good faith with Parent regarding any adjustments or violate modifications to the terms of this Section 7.2(dAgreement proposed by Parent; and (C) at the end of such four (4) Business Day period, the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel (after taking into account any adjustments or modifications to the terms of this Agreement committed to by Parent in writing and any other information offered by Parent), that the failure to make a Change of Recommendation in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Spirit AeroSystems Holdings, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. The Company Board and each committee thereof shall not:
(i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate provided in this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) 6.2, withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Offer and the Merger; or
(Fii) agreeexcept as expressly permitted by, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms ofand after compliance with, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b)6.2, the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal; Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance TimePurchase Date, but not after, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by may withhold, withdraw, qualify or modify the Company and has not been withdrawn and receipt of such Acquisition Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal made after the date hereof that was not as a result solicited, initiated, encouraged or facilitated in breach of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurredthis Agreement, and (2) if the Company Board determines in good faith, after consultation with receiving legal advice from outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect do so would reasonably be expected to constitute a Change breach of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) Recommendation”). No Change of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit Recommendation may be made until after at least 48 hours following Parent’s receipt of notice from the Company or any advising that management of the Company’s Subsidiaries Company currently intends to enter into an Alternative Acquisition Agreement with respect recommend to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to that it take such action and the basis therefortherefore, and shall also include (y) including the information under Section 6.2(f). In determining whether to make a Change of Recommendation in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect response to a Superior Proposal, as applicable; and (III) at the end of the Notice PeriodProposal or otherwise, the Company Board shall have taken into account consider any revisions changes to the terms of this Agreement proposed by Parent in writing and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any notice. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii)6.2, including for purposes of the Notice Period, except that subsequent with respect to the initial Notice Period, the Notice Period shall be reduced notice period referred to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of in this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)6.2.
Appears in 1 contract
Samples: Merger Agreement (Genlyte Group Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Subject to Section 7.2(d)(iii) and taking into account Section 7.2(e6.2(d), the Company Board and each committee of the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
, the Company Recommendation with respect to the Merger, (B) authorize, approve or recommend, or publicly propose to authorize, approve or recommend, any Acquisition Proposal, (C) make fail to include the Company Recommendation in the Proxy Statement, (D) fail to recommend that the Company’s stockholders reject any statement, directly tender offer or indirectly, exchange offer that has been publicly announced with respect to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with prior to the Transactionsearlier of (x) the date of the Stockholders Meeting (if it is reasonably practicable to make such recommendation prior to the Stockholders Meeting, in each case that is inconsistent with taking into account the Company Recommendation;
(D) following amount of time between the public disclosure of an Acquisition Proposalsuch offer and the Stockholders Meeting and the Company’s ability to adjourn the Stockholders Meeting to facilitate such recommendation) and (y) 11 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 promptly publicly reaffirm the Company Recommendation (but in any event within three two Business Days after receipt of any receiving a written request to do so from ParentParent or approve, recommend or otherwise declare advisable (or publicly propose to approve or recommend) any Acquisition Proposal (any of the foregoing, a “Change of Recommendation”);. For the avoidance of doubt, no action or omission of the board of directors (or other governing bodies) of the Specified Entities shall constitute a Change of Recommendation hereunder.
(Eii) Subject to the termination right contemplated by Section 8.3(b), the Company shall not, and shall cause its Subsidiaries not to, and the Company Board and each committee of the Company Board shall not approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected propose to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or agree, authorize or commit to do so.
other agreement (iiiexcept for confidentiality agreements permitted under Section 6.2(a)) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions relating to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an “Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(dAgreement”).
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as expressly permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e8.1(e)(iii), the Company Board Seller, shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) make any recommendation in support of, or, within ten (10) Business Days following its commencement, fail to include the Company Recommendation in the Schedule 14D-9recommend against an Acquisition Proposal;
(B) withholdapprove, withdrawrecommend, qualify or modify (declare advisable or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or approve, recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(FC) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i))foregoing.
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.28.1, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, if there has been no breach by the Company Board Seller in any material respect of its obligations set forth in this Section 8.1, Seller may: :
(A) effect a Change of Recommendation Recommendation
(1) if if
(xa) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company Seller after the date of this Agreement and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or or
(yb) an Intervening Event has occurred, and and
(2) the Company Board Seller determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(xA)(1)(a) of this Section 7.2(d)(iii8.1(e)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or and/or
(B) cause or permit the Company Seller to terminate this Agreement in accordance with Section 7.3 and cause or permit the Seller or any of the CompanySeller’s Subsidiaries Affiliates to enter into an Alternative Acquisition Agreement with respect to a such Superior Proposal (and the Company Seller may enter into or cause a Subsidiary an Affiliate thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; , provided, however, that no Change of Recommendation, action to terminate the Agreement pursuant to Section 7.3 to enter into an Alternative Acquisition Agreement or such other actions may be taken unless and until: :
(Ii) the Company Seller has given Parent Buyer written notice at least ninety-six hours four Business Days in advance (the “Notice Period”), which notice shall set forth in writing writing, that the Company Board it intends to consider whether to take such action and a reasonably detailed description of the basis therefor, and shall also include include,
(ya) in the case of a Superior such an Acquisition Proposal, all information required by Section 7.2(c8.1(d)(i) and 8.1(d)(ii), mutatis mutandis, and and
(zb) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; ;
(II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (IIIii) at the end of the Notice Period, the Company Board Seller shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, ,
(a) a failure to effect a Change of Recommendation or take such other action would continue to be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or and/or
(b) that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect Proposal continues to be a Superior Proposal, as the case may be (it being understood that (y) any material revisions to the financial or other material terms of any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c8.1(d) and this Section 7.2(d)(iii8.1(e)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and three Business Days) and
(zc) prior to the Company Seller or any Subsidiary Affiliate thereof entering into an Alternative Asset Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii8.1(e)(iii), the Company Seller shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance 7.3.
(iii) Upon termination of doubtthis Agreement under this Section 8.1 by Seller, the delivery, Buyer shall be refunded the funds in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)the Escrow account.
Appears in 1 contract
Samples: Asset Purchase Agreement (Odyssey Semiconductor Technologies, Inc.)
No Change of Recommendation or Alternative Acquisition Agreement. The board of directors of the Company and each committee of the board of directors shall not:
(i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Merger; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except except as expressly permitted by by, and after compliance with, Section 7.2(d)(iii8.3(a) and in connection with actions permitted by Section 9.3(b)hereof, the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Requisite Company Board may: (A) effect a Change Vote is obtained, the board of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by directors of the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of may withhold, withdraw, qualify or related to any breach by modify the Company Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal not knowingly solicited, entered into or agreed to in breach of its obligations set forth in this Section 7.2(a) in any material respect or (y) an Intervening Event has occurred6.2 and made after the date of this Agreement, and (2) if the board of directors of the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation do so would be inconsistent with the directors’ its fiduciary duties obligations under applicable Law and, in the case (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions Change of Recommendation may be taken unless and until: (I) made until after at least 72 hours following Parent’s receipt of notice from the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing advising that management of the Company Board currently intends to consider whether recommend to its board of directors that it take such action and the basis therefor, and shall also include (y) including all required information under Section 6.2(f). In determining whether to make a Change of Recommendation in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect response to a Superior Proposal, as applicable; and (III) at the end board of directors of the Notice Period, the Company Board shall have taken take into account any revisions changes to the terms of this Agreement proposed by Parent in writing and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Parent. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)6.2.
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), The Board of Directors of the Company Board and each committee thereof shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(Bi) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation with respect to the Merger or (but in any event within three Business Days after receipt of any written request ii) approve, recommend or otherwise declare advisable or propose to do so from Parentapprove, recommend or otherwise declare advisable or resolve to approve, recommend or otherwise declare advisable (publicly or otherwise);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions the Board of Directors of the Company may make a customary “stop, look and listen” communication and may elect to the financial terms of, or any material revisions to, any take no position with respect to an Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new until the close of business as of the 10th Business Day after the commencement of such Acquisition Proposal pursuant to Rule 14d-9(f) or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(iRule 14e-2 under the Exchange Act without such action being considered an adverse modification)).; or
(iiB) Except except as expressly permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b8.3(a), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement referred to in Section 6.2(a)(ii)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do soany Acquisition Proposal.
(iiiii) Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Company Requisite Vote is obtained, the Board may: of Directors of the Company and any committee thereof may (A) effect withhold, withdraw, qualify or modify the Company Recommendation or (B) approve, recommend or otherwise declare advisable or propose to approve, recommend or otherwise declare advisable or resolve to approve, recommend or otherwise declare advisable any Acquisition Proposal that the Board of Directors of the Company or any committee thereof determines in good faith is a Superior Proposal made after the date of this Agreement (any action described in clauses (A) or (B), a “Change of Recommendation Recommendation”), and thereafter may also take action pursuant to Section 8.3(a); provided, however, that (1) if in the case of clause (xA) where such action is not taken in response to an unsolicited bona fide written Acquisition Proposal is received by Proposal, the Board of Directors of the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines committee thereof shall have first determined in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would such action could be inconsistent with required by the directors’ fiduciary duties under applicable Law and, and (2) the Company shall not effect a Change of Recommendation in the case of connection with an Acquisition Proposal contemplated by clause or take any action pursuant to Section 8.3(a) with respect to an Acquisition Proposal unless and until (A)(1)(xx) of this Section 7.2(d)(iii)the Company notifies Parent in writing, at least three Business Days in advance, that such the Company’s Board of Directors intends to effect a Change of Recommendation in connection with an Acquisition Proposal constitutes that is a Superior Proposal or to take action pursuant to Section 8.3(a) with respect to an Acquisition Proposal that is a Superior Proposal; and/or , in either case subject only to compliance with this clause (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”2), which notice shall set forth in writing that specify the Company Board intends to consider whether to take identity of the party who made such action Superior Proposal and all of the basis therefor, material terms and conditions of such Superior Proposal and shall also include attach the agreement and all material related documentation providing for such Superior Proposal; (y) after providing such notice and prior to making such Change of Recommendation in the case of connection with a Superior Proposal, all information required by Proposal or taking any action pursuant to Section 7.2(c), mutatis mutandis, and (z8.3(a) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicablethe Company shall negotiate in good faith with Parent during such three Business Day period (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement, the Financing Commitments and the Guarantee such that it would cause such Superior Proposal to no longer constitute a Superior Proposal; and (IIIz) at the end Board of Directors of the Notice PeriodCompany shall have considered in good faith any changes to this Agreement, the Company Board shall have taken into account any revisions to this Agreement proposed Financing Commitments and the Guarantee offered in writing by Parent in writing and any other information offered a manner that would form a binding contract if accepted by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, Company and shall have determined in good faith thatthat the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect; provided that in the event the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, after consultation the Company shall notify Parent in writing of such modified Acquisition Proposal and shall again comply with outside legal counselthis Section 6.2(c), based on except that the information then available, Company’s advance written notice obligation shall be reduced to two Business Days (rather than the three Business Days otherwise contemplated by this Section 6.2(c)) and after consultation with an independent financial advisor of nationally recognized reputation, a failure the time the Company shall be permitted to effect a Change of Recommendation would be inconsistent in connection with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-the time that is two hours and Business Days after it has provided such written notice (z) prior to rather than the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), time that is the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice three Business Days otherwise contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d6.2(c)).
Appears in 1 contract
Samples: Merger Agreement (Jones Group Inc)
No Change of Recommendation or Alternative Acquisition Agreement. The board of directors of the Company and the Independent Committee shall not:
(i) Except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e), the Company Board shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statementthe Strategic Investor and the Controlling Shareholder, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Merger; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except except as expressly permitted by by, and after compliance with, Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b8.3(a), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Requisite Company Board may: (A) effect a Change Vote is obtained, the board of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by directors of the Company, based on recommendation of the Independent Committee, may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal not knowingly solicited, entered into or agreed to in breach of this Section 6.2 and has not been withdrawn and receipt made after the date of such Acquisition Proposal was not as a result this Agreement, if the board of or related to any breach by directors of the Company of its obligations set forth in Section 7.2(a(acting through the Independent Committee) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation do so would be inconsistent with the directors’ its fiduciary duties obligations under applicable Law and, in the case (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions Change of Recommendation may be taken unless made until after at least 72 hours following the Strategic Investor’s and until: (I) the Controlling Shareholder’s receipt of notice from the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing advising that the Company Board (acting through the Independent Committee) currently intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case including all required information under Section 6.2(e). In determining whether to make a Change of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by ParentRecommendation, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) board of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end directors of the Notice PeriodCompany, based on recommendation of the Company Board Independent Committee, shall have taken take into account any revisions changes to the terms of this Agreement proposed by Parent in writing Strategic Investor and Controlling Shareholder and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, Strategic Investor and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Controlling Shareholder. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c6.2 and shall require a new notice to the Strategic Investor and the Controlling Shareholder as contemplated by Section 6.2(e) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated be required to comply again with the requirements of this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)paragraph.
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as expressly permitted by by, and after compliance with, Section 7.2(d)(iii) and taking into account Section 7.2(e8.3(a), the Company Board shall not (it being understood that the determination, in itself, by board of directors of the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of and the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):Independent Committee shall not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(Bi) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statementthe Controlling Shareholder, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Merger; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, the Company Board may: (A) effect a Change board of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by directors of the Company, based on recommendation of the Independent Committee, may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Superior Proposal not knowingly solicited, entered into or agreed to in breach of this Section 6.2 and has not been withdrawn and receipt made after the date of such Acquisition Proposal was not as a result this Agreement, if the board of or related to any breach by directors of the Company of its obligations set forth in Section 7.2(a(acting through the Independent Committee) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation do so would be inconsistent with the directors’ its fiduciary duties obligations under applicable Law and, in the case (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions Change of Recommendation may be taken unless and until: (I) made until after at least three business days following the Controlling Shareholder’s receipt of notice from the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing advising that the Company Board (acting through the Independent Committee) currently intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case including all required information under Section 6.2(b). In determining whether to make a Change of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by ParentRecommendation, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) board of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end directors of the Notice PeriodCompany, based on recommendation of the Company Board Independent Committee, shall have taken take into account any revisions changes to the terms of this Agreement proposed by Parent in writing Controlling Shareholder and any other information offered provided by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any Controlling Shareholder. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c6.2 and shall require a new notice to the Controlling Shareholder as contemplated by Section 6.2(b) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated be required to comply again with the requirements of this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d)paragraph.
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii6.2(f) and taking into account Section 7.2(e6.2(g), the Company Board Board, including any committee thereof, shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(Ai) withdraw or fail to include make when required by this Agreement (or publicly propose or publicly resolve to withdraw or fail to make when required by this Agreement) the Company Recommendation in with respect to the Schedule 14D-9Merger;
(Bii) withhold, withdraw, qualify or modify (or publicly propose or publicly resolve to withhold, withdraw, qualify or modify) the Company Recommendation with respect to the Merger in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request to do so from Parent);
(Eiii) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected Proposal;
(iv) fail to lead to an include the Company Recommendation in the Proxy Statement;
(v) if any Acquisition Proposal that is structured as a tender offer or exchange offer for outstanding Shares is commenced pursuant to Rule 14d-2 of the Exchange Act, fail to recommend against acceptance of such offer by the Company’s shareholders prior to the earlier of (A) the date of the Company Shareholders Meeting and (B) 11 business days (which for this purpose shall be used as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer pursuant to Rule 14d-2 of the Exchange Act;
(vi) approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agreeletter of intent, authorize memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, collaboration agreement or commit to do any of the foregoing (it being understood that any revisions to the financial terms ofother agreement with respect to, or any material revisions that is intended or would reasonably be expected to lead to, any Acquisition Proposal or Alternative (other than a confidentiality agreement pursuant to Section 6.2(b)(i) relating to any Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Proposal) (an “Alternative Acquisition Agreement,” and any of the actions set forth in the foregoing clauses (i) through (vi), respectively, for purposes a “Change of this Section 7.2(d)(iRecommendation”)).; or
(iivii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do soAgreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).
Appears in 1 contract
Samples: Merger Agreement (Amazon Com Inc)
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as expressly permitted by Section 7.2(d)(iii7.2(d)(iii) and taking into account subject to Section 7.2(e7.2(e), the Company Board and the Special Committee, shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation or the Special Committee Recommendation in the Schedule 14D-9Proxy Statement;
(B) withhold, withdraw, qualify change, qualify, amend or modify (or publicly propose or resolve to withhold, withdraw, qualify change, qualify, amend or modify) the Company Recommendation or the Special Committee Recommendation in a manner adverse to Parent;
(C) make any statementrecommendation in support of, directly or, within ten (10) Business Days following its commencement, fail to recommend against, a tender or indirectly, exchange offer structured as such pursuant to any Person beneficially owning five percent or more Rule 14d-2 of the outstanding Shares or any public statement in connection with the Transactions, in each case Exchange Act that is inconsistent with the Company Recommendationconstitutes an Acquisition Proposal;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event or the Special Committee Recommendation within three ten Business Days after receipt of any written request to do so from ParentParent (provided, that the Company shall not be required to reaffirm more than once per Acquisition Proposal (unless the terms of such Acquisition Proposal change in any material respects and such change is publicly announced or disclosed));
(E) approve or approve, recommend, declare advisable or publicly declare advisable, propose to approve any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or approve, recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i))foregoing.
(ii) Except as permitted by Section 7.2(d)(iii7.2(d)(iii) and in connection after compliance with actions permitted by Section 9.3(b7.2(d)(iii) and Section 9.3(b), the Company Board and the Special Committee, shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Timetime the Requisite Company Vote is obtained, if there has been no breach by the Company in any material respect of its obligations set forth in this Section 7.2, each of the Company Board and the Special Committee, may: (A) effect a Change of Recommendation (1) if an (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company after the date of this Agreement and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board (acting on the recommendation of the Special Committee) determines in good faith, after consultation with outside legal counsel, that based on the information then available counsel and after consultation with an the Special Committee’s independent financial advisor of nationally recognized reputationadvisor, that a failure to effect a Change of Recommendation would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company to terminate this Agreement in accordance with Section 9.3(b) and cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a such Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so, in each case, so long as the Company complies with Section 9.5(c)(iii)); provided, however, that no Change of Recommendation, action to terminate the Agreement pursuant to Section 9.3(b) to enter into an Alternative Acquisition Agreement or such other actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours four Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board it intends to consider whether to take such action and a reasonably detailed description of the basis therefor, and shall also include include, (y) in the case of a Superior such an Acquisition Proposal, all information required by Section 7.2(c7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent, including providing Parent the opportunity to make a presentation to the Company Board and the Special Committee regarding this Agreement and, to the extent applicable, any proposed revisions thereto, to revise this Agreement so that conditions set forth in clause clauses (A)(2) of this Section 7.2(d)(iii7.2(d)(iii) would not be satisfied or the Alternative such Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) Proposal would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board and the Special Committee shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith that, after consultation with outside legal counsel, based on the information then available, counsel and after consultation with an the Special Committee’s independent financial advisor of nationally recognized reputationadvisor, (x) a failure to effect a Change of Recommendation or take such other action would continue to be reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or and/or (y) that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect Proposal continues to be a Superior Proposal, as the case may be (it being understood that (y) any material revisions to the financial or other material terms of any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c7.2(c) and this Section 7.2(d)(iii7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours three Business Days) and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d9.3(b).
Appears in 1 contract
No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii6.02(d)(iii) and taking into account Section 7.2(e6.02(e), the Company Board shall not (it being understood that any of the determinationactions described in any of clauses (A) through (F) below, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead tofollowing, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a “Change of Recommendation or violate this Section 7.2(d)Recommendation”):
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(B) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation in a manner adverse to Parent;
(C) make any statementwith respect to an Acquisition Proposal initiated through a tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, directly or indirectly, fail to any Person beneficially owning five percent or more recommend unequivocally against acceptance of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendationsuch offer within 10 Business Days of such offer;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three five Business Days after receipt of any written request to do so from Parent);
(E) approve or recommend, or publicly declare advisable, advisable any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreement; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i6.02(d)(i)).
(ii) Except as permitted by Section 7.2(d)(iii) and in connection with actions permitted by Section 9.3(b6.02(d)(iii), the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.
(iii) Notwithstanding anything to the contrary set forth in this Section 7.26.02(d), prior to the Offer Acceptance Time, if there has not been a breach of the Company’s obligations set forth in this Section 6.02, the Company Board may: (A) effect a Change of Recommendation (1) if an (x) an unsolicited unsolicited, bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii6.02(d)(iii), after consultation with its financial advisor, that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof one of its Subsidiaries to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours four Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and a reasonably detailed description of the basis therefor, and shall also include include, (y) in the case of a Superior such an Acquisition Proposal, all information required by Section 7.2(c6.02(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that the conditions set forth in clause clauses (A)(2) of this Section 7.2(d)(iii6.02(d)(iii) would not be satisfied or the such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii6.02(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii6.02(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith thatfaith, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is 6.02(d)(iii), after consultation with its financial advisor, continues to be an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c6.02(c) and this Section 7.2(d)(iii6.02(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours Business Days and (z) prior to the Company or any Subsidiary thereof of its Subsidiaries entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii6.02(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and transactions contemplated by this Agreement pursuant to Section 9.3(b8.03(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d).
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No Change of Recommendation or Alternative Acquisition Agreement. (i) Except as permitted by Section 7.2(d)(iii) The Company Board of Directors and taking into account Section 7.2(e), each committee of the Company Board of Directors shall not (it being understood that the determination, in itself, by the Company Board that an Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal (so long as such determination is not publicly disclosed or made to any Person beneficially owning five percent or more of the outstanding Shares, except as permitted by Section 7.2(d)(iii) and taking into account Section 7.2(e)) will not constitute a Change of Recommendation or violate this Section 7.2(d)):not:
(A) fail to include the Company Recommendation in the Schedule 14D-9;
(Bi) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation ), in a manner adverse to Parent;
(C) make any statement, directly or indirectly, to any Person beneficially owning five percent or more of the outstanding Shares or any public statement in connection with the Transactions, in each case that is inconsistent with the Company Recommendation;
(D) following the public disclosure of an Acquisition Proposal, fail to promptly publicly reaffirm the Company Recommendation (but in any event within three Business Days after receipt of any written request with respect to do so from Parent);
(E) approve or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative Acquisition Agreementthe Merger; or
(F) agree, authorize or commit to do any of the foregoing (it being understood that any revisions to the financial terms of, or any material revisions to, any Acquisition Proposal or Alternative Acquisition Agreement shall be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively, for purposes of this Section 7.2(d)(i)).
(ii) Except except as expressly permitted by by, and after compliance with, Section 7.2(d)(iii7.3(a) and in connection with actions permitted by Section 9.3(b)hereof, the Company Board shall not cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 5.6(a) entered into in compliance with Section 5.6(a)) (an “Alternative Acquisition Agreement or agree, authorize or commit Agreement”) relating to do so.
(iii) any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Section 7.2Agreement, prior to the Offer Acceptance Timetime, but not after, the Company Stockholder Vote is obtained, (x) in response to a Superior Proposal, the Company Board may: (A) effect a Change of Directors may withhold, withdraw, qualify or modify the Company Recommendation (1or publicly propose or resolve to do so) or approve, recommend or otherwise declare advisable any Superior Proposal not solicited, entered into or agreed to in breach of this Section 5.6 and made after the date of this Agreement, if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board of Directors determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation do so would be inconsistent with the directors’ its fiduciary duties obligations under applicable Applicable Law and, in the case (a “Change of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iiiRecommendation”), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions Change of Recommendation may be taken unless and until: (I) made until at least 72 hours following Parent’s receipt of notice from the Company has given Parent written notice at least ninety-six hours in advance (advising that management of the “Notice Period”), which notice shall set forth in writing that Company currently intends to recommend to the Company Board intends to consider whether to of Directors that it take such action and the basis thereformaterial terms of the Superior Proposal, including all required information under Section 5.6(f) (which period may run concurrently with the period contemplated in Section 7.3(a)) and shall also include (y) other than in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect response to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions of Directors may withhold, withdraw, qualify or modify the Company Recommendation (or publicly propose or resolve to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (Ido so) if the Company Board of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined Directors determines in good faith thatfaith, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure that it is required by its fiduciary obligations to effect do so. In determining whether to make a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect in response to a Superior Proposal, as the case may be (it being understood that (y) Company Board of Directors shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent. Any material revisions amendment to any Acquisition Proposal shall will be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d5.6(c).
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