Change of Board Recommendation Clause Samples
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Change of Board Recommendation. Prior to the adoption of this Agreement by the Company’s stockholders and subject to compliance by the Company with Section 6.4, the Board of Directors of the Company may withhold, withdraw, qualify or modify the Board Recommendation or approve, adopt, recommend or otherwise declare advisable any Superior Proposal made after the date hereof and not solicited, initiated or encouraged in breach of this Agreement (any of the foregoing, a “Change of Recommendation”), if, subject to compliance by the Company with this Section 6.2 and Section 6.4, the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of the fiduciary duties of the Company’s Board of Directors under applicable Law; provided, however, that (A) no Change of Recommendation may be made in response to a Superior Proposal (i) until after at least four Business Days following Parent’s receipt of written notice from the Company advising that the Board of Directors of the Company intends to take such action in response to the receipt by the Company of a Superior Proposal, attaching the most current version of any proposed agreement or a writing containing a summary of the material terms of any such proposal and the identity of the offeror, and (ii) unless Parent or Merger Sub does not make, within such four Business Day period, an offer that is at least as favorable to the stockholders of the Company, as determined by the Board of Directors of the Company in good faith (after consultation with its financial advisor), as such Superior Proposal (it being understood that the Company shall not make a Change of Recommendation during such four Business Day period, and that any amendment to the economic terms or other material terms of such Superior Proposal shall require a new written notification from the Company and an additional three Business Day period) and (B) no Change of Recommendation may be made other than in response to a Superior Proposal (i) until after at least four Business Days following Parent’s receipt of written notice from the Company advising that the Board of Directors of the Company intends to take such action, attaching a written explanation of the reasons for such action, and (ii) unless Parent or Merger Sub does not make, within such four Business Day period, a proposal to change the terms of this Agreement that would permit the Board ...
Change of Board Recommendation. (i) By the Company, at any time prior to the time the Required Company Vote is obtained, if (A) the Company Board shall have effected, and not withdrawn, a Change of Board Recommendation and has authorized the Company to enter into, and the Company substantially concurrently enters into, a definitive agreement with respect to a Superior Proposal, (B) the Company shall have complied in all material respects with its obligations under Section 6.3, and (C) the Company shall have paid any amounts due pursuant to Section 8.3 in accordance with the terms, and at the times, specified therein; provided, that this Company’s right to terminate pursuant to this Section 8.1(e)(i) shall expire when the Required Company Vote is obtained; or
(ii) By Parent, at any time prior to the time the Required Company Vote is obtained, if the Company Board shall have effected, and not withdrawn, a Change of Board Recommendation or the Company shall have approved or adopted, or recommended the approval or adoption of, any definitive agreement with respect to a Superior Proposal;
Change of Board Recommendation. Notwithstanding anything to the contrary contained in Section 5.5(d), if the Company receives an Acquisition Proposal which the Company Board concludes in good faith, after consultation with its financial and legal advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including pursuant to clause (ii) below), the Company Board may at any time prior to the Company Stockholder Approval, if it determines in good faith, after consultation with its legal advisors, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, (x) effect a Change of Board Recommendation as provided by Section 5.5(d)(i), (ii) or (iv) with respect to such Superior Proposal or (y) effect a Change of Board Recommendation as provided by Section 5.5(d)(iii) and terminate this Agreement with respect to such Superior Proposal; provided, however, that the Company (including the Company Board or any committee thereof) may not take the actions specified in the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Termination Fee and otherwise complies with the provisions of Section 7.1(d) (‘‘Termination’’) and Section 7.2 (‘‘Effect of Termination’’), and; provided further that the Company (including the Company Board or any committee thereof) may not take the actions specified in the foregoing clause (x) or clause (y) unless (A) the Company shall not have breached this Section 5.5 in any material respect with respect to such Superior Proposal and (B):
i. the Company shall have provided prior written notice to Parent (such notice, including the attachments thereto, as described below, the ‘‘Superior Proposal Notice’’), at least four (4) Business Days in advance (the ‘‘Notice Period’’), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that any determination to send to Parent, or actual delivery to Parent of, a Superior Proposal Notice shall not, in and of itself, constitute a Change of Board Recommendation), which Superior Proposal Notice shall (A) specify the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal) and (B) include copies of the ...