Common use of Parent Adverse Recommendation Change Clause in Contracts

Parent Adverse Recommendation Change. (a) Except as provided in Section 6.07(b), neither the Parent Board nor any committee thereof shall, directly or indirectly, withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, or publicly propose to withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, the Parent Recommendation or fail to make, or include in the applicable Parent Disclosure Documents, the Parent Recommendation, or make any public statement inconsistent with the Parent Recommendation, (any action described in this clause being referred to as an “Parent Adverse Recommendation Change”). (b) Notwithstanding anything to the contrary set forth in Section 6.07(a), upon the occurrence of any Parent Intervening Event, the Parent Board may, at any time prior to receipt of the Parent Stockholder Approval, make a Parent Adverse Recommendation Change, or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met: (i) Parent shall have (A) provided to the Company four (4) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Parent Intervening Event and the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Parent Board has determined to effect a Parent Adverse Recommendation Change and the Parent Board shall have determined, in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to effect a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland and (B) prior to making such a Parent Adverse Recommendation Change, to the extent requested in writing by the Company, engaged in good faith negotiations with the Company during such four (4) Business Day period to amend this Agreement in such a manner that the failure of the Parent Board to make a Parent Adverse Recommendation Change in response to the Parent Intervening Event in accordance with clause (ii) below would no longer be, in the good faith determination of the Parent Board, inconsistent with the directors’ duties under the Laws of the State of Maryland; and (ii) the Parent Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that in light of such Parent Intervening Event and taking into account any revised terms proposed by the Company, the failure to make a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland (it being understood and agreed that any material change to the circumstances giving rise to the Parent Intervening Event that was previously the subject of a notice hereunder shall require a new notice to the Company as provided above; provided, that, with respect to each such material change, each reference in the preceding clauses (i) and (ii) to a “four (4) Business Day” period shall be changed to refer to a “three (3) Business Day” period). (c) Nothing contained in this Agreement shall prohibit Parent or the Parent Board from taking and disclosing to the Parent’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure shall be deemed a Parent Adverse Recommendation Change unless the Parent Board expressly publicly reaffirms and without qualification (other than a recitation of the terms of this Agreement) the Parent Recommendation.

Parent Adverse Recommendation Change. (a) Except as provided in Section 6.07(b), neither the Parent Board nor any committee thereof shall, directly or indirectly, withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, or publicly propose to withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, the Parent Recommendation or fail to make, or include in the applicable Parent Disclosure Documents, the Parent Recommendation, or make any public statement inconsistent with the Parent Recommendation, (any action described in this clause being referred to as an “Parent Adverse Recommendation Change”). (b) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Parent Stock Issuance Approval, and subject to compliance with the provisions of this Section 6.07(a5.3(e), upon the occurrence of any Parent Intervening Event, the Parent Board may, at any time prior to receipt of if the Parent Stockholder ApprovalBoard determines in good faith (after consultation with the Parent’s financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable Law, make a Parent Adverse Recommendation Change; provided, or authorizehowever, resolvethat no such Parent Adverse Recommendation Change shall be made in response to a Parent Acquisition Proposal that does not constitute a Parent Designated Proposal; provided further, agree or propose publicly however, that the Parent Board may not effect a Parent Adverse Recommendation Change pursuant to take any such action, only if all of the following conditions are metforegoing unless: (i) Parent shall have (A) has provided prior written notice to the Company four (4) Business Days’ prior written notice, which shall (1) set forth SXCP Conflicts Committee specifying in reasonable detail information describing the Parent Intervening Event and reasons for such action (including, in the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Parent Board has determined to effect case of a Parent Adverse Recommendation Change and the Parent Board shall have determinedDesignated Proposal, in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to effect a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws description of the State material terms of Maryland such Parent Designated Proposal and complete copies of any written proposals, offers and/or draft definitive agreements in connection therewith) at least three (B3) prior days in advance of its intention to making take such action with respect to a Parent Adverse Recommendation Change, unless at the time such notice is required to the extent requested in writing by the Company, engaged in good faith negotiations with the Company during such four be given there are less than three (43) Business Day period to amend this Agreement in such a manner that the failure of the Parent Board to make a Parent Adverse Recommendation Change in response days prior to the Parent Intervening Event in accordance with clause (ii) below would no longer beStockholder Meeting, in which case Parent shall provide as much notice as is reasonably practicable (the good faith determination period inclusive of all such days, the “Parent Board, inconsistent with the directors’ duties under the Laws of the State of MarylandNotice Period”); and (ii) during the Parent Notice Period the Parent Board shall have determined in good faithhas negotiated, after consultation with and has used reasonable best efforts to cause its financial advisor and outside legal counsel to negotiate, with the SXCP Conflicts Committee in good faith (to the extent the SXCP Conflicts Committee desires to negotiate) to make such adjustments in the terms and financial advisors, conditions of this Agreement so that in light of such Parent Intervening Event and taking into account any revised terms proposed by the Company, the failure to make a effect such Parent Adverse Recommendation Change would not be inconsistent with the Parent directors’ its fiduciary duties to stockholders under the Laws of the State of Maryland (it being understood and agreed applicable Law; provided that any material change amendment to the circumstances giving rise to the Parent Intervening Event that was previously the subject terms of a notice hereunder Parent Designated Proposal, if applicable, shall require a new notice pursuant to the Company as provided above; provided, that, with respect to each such material change, each reference in the preceding clauses (ithis Section 5.3(e) and a new Parent Notice Period, except that such new Parent Notice Period in connection with any material amendment shall be for one (ii) to a “four (41) Business Day” period shall be changed Day from the time SXCP receives such notice (as opposed to refer to a “three (3) Business Day” perioddays). (c) Nothing contained in this Agreement shall prohibit Parent or the Parent Board from taking and disclosing to the Parent’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure shall be deemed a Parent Adverse Recommendation Change unless the Parent Board expressly publicly reaffirms and without qualification (other than a recitation of the terms of this Agreement) the Parent Recommendation.

Parent Adverse Recommendation Change. (a) Except as provided Nothing in Section 6.07(b)this Agreement shall be construed to limit the ability of Parent to seek or discuss a Proposal (whether or not such Proposal is a Conditional Proposal) or enter into an Acquisition Agreement. During the period beginning on the date of this Agreement and prior to the Effective Time, neither Parent agrees to provide all members of the Parent Board, including any members of the Parent Board nor that are Affiliates of Thermo, with prompt notice of receipt of any committee thereof shallProposals, directly or indirectlyincluding the material terms thereof, withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, or publicly propose to withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, the Parent Recommendation or fail to make, or include in the applicable Parent Disclosure Documents, the Parent Recommendation, or make any public statement inconsistent with the Parent Recommendation, (any action described in this clause being referred to as an “Parent Adverse Recommendation Change”)within 48 hours of receipt. (b) At any time prior to the Effective Time, the Parent Board or, if within its authority, the Special Committee of Parent, may effect a Parent Adverse Recommendation Change or authorize Parent (or any Subsidiary of Parent) to enter into an Acquisition Agreement with respect to a Conditional Proposal if (A) Parent promptly notifies Thermo, in writing, at least five Business Days (the “Superior Proposal Notice Period”) before making a Parent Adverse Recommendation Change or entering into or authorizing Parent (or one of its Subsidiaries) to enter into an Acquisition Agreement with respect to a Conditional Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that such party has received a Conditional Proposal that the Parent Board, or if within its authority, the Special Committee of Parent, intends to declare a Superior Proposal and effect a Parent Adverse Recommendation Change and/or Parent intends to enter into an Acquisition Agreement with respect to a Conditional Proposal, (B) Parent attaches to such notice the most current version of the proposed agreement, (C) Parent shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with Thermo in good faith (to the extent Thermo desires to negotiate) regarding a possible amendment of this Agreement so that the Conditional Proposal that is the subject of the Superior Proposal Notice Period ceases to be a Superior Proposal, and (D) the Parent Board, or if within its authority, the Special Committee of Parent, determines in good faith, after consulting with outside legal counsel and its financial advisor, that such Conditional Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by the other party during the Superior Proposal Notice Period in the terms and conditions of this Agreement. (c) Notwithstanding anything to the contrary contained in this Agreement, Thermo shall not be entitled to terminate this Agreement except as expressly set forth in Section 6.07(a), upon Article 10. For the occurrence avoidance of any Parent Intervening Eventdoubt, the Parent Board may, at any time prior to receipt provisions of the Parent Stockholder Approval, make a Parent Adverse Recommendation Change, or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met: (iSection 5.07(b) Parent shall have (A) provided to the Company four (4) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Parent Intervening Event and the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Parent Board has determined to effect a Parent Adverse Recommendation Change and the Parent Board shall have determined, in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to effect a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland and (B) prior to making such a Parent Adverse Recommendation Change, to the extent requested in writing by the Company, engaged in good faith negotiations with the Company during such four (4) Business Day period to amend this Agreement in such a manner that the failure of the Parent Board to make a Parent Adverse Recommendation Change in response to the Parent Intervening Event in accordance with clause (ii) below would no longer be, in the good faith determination of the Parent Board, inconsistent with the directors’ duties under the Laws of the State of Maryland; and (ii) the Parent Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that in light of such Parent Intervening Event and taking into account any revised terms proposed by the Company, the failure to make a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland (it being understood and agreed that any material change to the circumstances giving rise to the Parent Intervening Event that was previously the subject of a notice hereunder shall require a new notice to the Company as provided above; provided, that, apply solely with respect to each such material change, each reference in a Conditional Proposal and the preceding clauses (i) and (ii) entering into of an Acquisition Agreement with respect to a “four (4) Business Day” period shall be changed to refer to a “three (3) Business Day” period)Conditional Proposal. (c) Nothing contained in this Agreement shall prohibit Parent or the Parent Board from taking and disclosing to the Parent’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure shall be deemed a Parent Adverse Recommendation Change unless the Parent Board expressly publicly reaffirms and without qualification (other than a recitation of the terms of this Agreement) the Parent Recommendation.

Parent Adverse Recommendation Change. (a) Except as provided in Section 6.07(b), neither the Parent Board nor any committee thereof shall, directly or indirectly, withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, or publicly propose to withhold, withdraw, qualify, amend or modify in a manner adverse to the Company, the Parent Recommendation or fail to make, or include in the applicable Parent Disclosure Documents, the Parent Recommendation, or make any public statement inconsistent with the Parent Recommendation, (any action described in this clause being referred to as an “Parent Adverse Recommendation Change”). (b) Notwithstanding anything to the contrary set forth in Section 6.07(a), upon the occurrence of any Parent Intervening Event, the Parent Board may, at any time prior to receipt of the Parent Stockholder Approval, make a Parent Adverse Recommendation Change, or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met: (i) Parent shall have (A) provided to the Company four (4) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Parent Intervening Event and the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, subject to clause (ii) below, the Parent Board has determined to effect a Parent Adverse Recommendation Change and the Parent Board shall have determined, in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to effect a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland and (B) prior to making such a Parent Adverse Recommendation Change, to the extent requested in writing by the Company, engaged in good faith negotiations with the Company during such four (4) Business Day period to amend this Agreement in such a manner that the failure of the Parent Board to make a Parent Adverse Recommendation Change in response to the Parent Intervening Event in accordance with clause (ii) below would no longer be, in the good faith determination of the Parent Board, inconsistent with the directors’ duties under the Laws of the State of Maryland; and (ii) the Parent Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that in light of such Parent Intervening Event and taking into account any revised terms proposed by the Company, the failure to make a Parent Adverse Recommendation Change would be inconsistent with the Parent directors’ duties under the Laws of the State of Maryland (it being understood and agreed that any material change to the circumstances giving rise to the Parent Intervening Event that was previously the subject of a notice hereunder shall require a new notice to the Company as provided above; provided, that, with respect to each such material change, each reference Table of Contents in the preceding clauses (i) and (ii) to a “four (4) Business Day” period shall be changed to refer to a “three (3) Business Day” period). (c) Nothing contained in this Agreement shall prohibit Parent or the Parent Board from taking and disclosing to the Parent’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure shall be deemed a Parent Adverse Recommendation Change unless the Parent Board expressly publicly reaffirms and without qualification (other than a recitation of the terms of this Agreement) the Parent Recommendation.