Company Board Recommendation. (a) Subject to Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) if a tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Biodelivery Sciences International Inc), Agreement and Plan of Merger (Collegium Pharmaceutical, Inc)
Company Board Recommendation. (a) Subject to Section 7.1(b6.01(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.01(b), neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within five business days after a written request by Parent to do so (or, if earlier, by the close of business on the End Date), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the two or three business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance that the Company’s stockholders reject such tender offer or exchange offer within 10 business days after the commencement of such tender offer or exchange offer within ten pursuant to Rule 14d-9(f) promulgated under the Exchange Act (10or, if earlier, by the close of business on the End Date) Business Days or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or cause or allow any Acquired the Company to execute or enter into any Contract (A) Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Immunomedics Inc), Agreement and Plan of Merger (Gilead Sciences Inc)
Company Board Recommendation. (a) Subject to Section 7.1(b5.3(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) (A) withdraw or withhold (or modifywithdraw, change amend, modify or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), Merger Sub the Company Board Recommendation, (Bii) adopt, approve, publicly approve or recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any an Acquisition Proposal, (Ciii) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company Stockholders, (iv) if any Acquisition Proposal is structured as a tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal outstanding Shares and is commenced (within the meaning of pursuant to Rule 14d-2 under the Exchange ActAct (other than by Parent or an Affiliate of Parent), fail to recommend against acceptance of such tender offer or exchange offer recommend, within ten (10) Business Days after such commencement, against acceptance by the Company Stockholders of such tender offer or exchange offer, or (Dv) if publicly propose to do any Acquisition Proposal has been made publicof the foregoing (each of clauses (i), fail (ii), (iii), (iv) and (v), a “Company Board Recommendation Change”); provided, however, that, notwithstanding anything herein to publicly reaffirm the contrary, a “stop, look and listen” communication by the Company Board or any committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, any action contemplated by Section 5.3(c)(i) or any substantially similar communication to either of the foregoing, shall not be deemed to be a Company Board Recommendation Change or otherwise be prohibited under the terms of this Agreement, provided that any such disclosure by the Company shall state that the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days continues to be in effect unless, prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests time of such reaffirmation public disclosure, a Company Board Recommendation Change has been made in compliance with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”)Section 5.3.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Biogen Inc.), Agreement and Plan of Merger (Reata Pharmaceuticals Inc)
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(A) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) approve, adopt, approveendorse, recommend or declare advisable, or publicly propose to approve, adopt, approveendorse, recommend or declare advisable, any Acquisition Proposal, (C) after the public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) business days after a written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly reaffirm the Company Board Recommendation and recommend against acceptance of that the Company’s stockholders reject such tender offer or exchange offer within ten (10) Business Days business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the Company’s stockholders, or (DF) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three five (35) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days business days after Parent so requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, writing (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).a
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cti Biopharma Corp), Agreement and Plan of Merger (Cti Biopharma Corp)
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(A) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) after receipt or public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) business days after a written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend against acceptance that the Company’s stockholders reject such tender offer or exchange offer within three (3) business days after the commencement of such tender offer or exchange offer within ten pursuant to Rule 14d-9(f) under the Exchange Act (10or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) Business Days or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or cause or allow any Acquired the Company to execute or enter into any Contract (A) Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to Section 7.1(b5.02(e), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 5.02(e), neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (Bii) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (Ciii) adopt, approve, recommend or allow the Company to enter into a letter of intent or Contract for an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or that obligates the Company to abandon, terminate or fail to consummate the Transactions, (iv) after receipt or public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within five (5) Business Days after a written request by Parent to do so (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time), (v) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend against acceptance that the Company’s stockholders reject such tender offer or exchange offer within five (5) Business Days after the commencement of such tender offer or exchange offer within ten pursuant to Rule 14d-9(f) under the Exchange Act (10or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time) Business Days or (Dvi) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i) to (v) above being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(A) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or PurchaserMerger Sub), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or PurchaserMerger Sub), the Company Board RecommendationRecommendation (it being understood that the Company Board Recommendation shall be deemed to have been modified in a manner adverse to Parent if it shall no longer be unanimous), (B) approve, adopt, approveendorse, recommend or declare advisable, or publicly propose to approve, adopt, approveendorse, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) Business Days after a written request by Parent to do so (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend against acceptance of that the Company’s shareholders reject such tender offer or exchange offer within ten (10) Business Days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time) or (DF) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date Company’s shareholders (any action or ten (10) Business Days after Parent requests such reaffirmation with respect failure to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (take any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, adopt, approveendorse, recommend or declare advisable, or propose to approve, adopt, approveendorse, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any letter of intent, agreement in principle, acquisition agreement or other Contract (A) with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”Agreement entered into in compliance with Section 5.3(c)).
Appears in 1 contract
Company Board Recommendation. (a) Subject to Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither Neither the Company Board nor any committee thereof shall (i) (A) withdraw withhold, withdraw, qualify, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Merger Sub, or publicly propose to withdraw withhold, withdraw, qualify, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Merger Sub, the Company Board Recommendation, (Bii) adoptif a tender offer or exchange offer for Company Common Stock that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent, fail to file a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the Stockholders reject such Acquisition Proposal and not tender any shares of Company Common Stock into such tender or exchange offer (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the Stockholders) (it being understood that the Company Board may refrain from taking any position with respect to an Acquisition Proposal until the close of business on the tenth (10th) Business Day after the commencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act, including issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act), (iii) fail to publicly reaffirm the Company Board Recommendation within five (5) Business Days after Parent so reasonably requests in writing; (iv) approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, Proposal made or received after the date hereof; (Cv) if a tender offer cause or exchange offer for permit the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning to enter into any letter of Rule 14d-2 under the Exchange Act)intent, fail memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement constituting or relating to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, (other than an Acceptable Confidentiality Agreement as permitted under Section 5.2(c)) or (vi) fail to publicly reaffirm include the Company Board Recommendation upon request in the Schedule 14D-9 and, if applicable, the Meeting Statement (any of the actions described in clauses (i) through (vi) of this Section 5.3(a), a “Company Board Recommendation Change”). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to the Acceptance Time, the Company Board (or any committee thereof) may, in response to (x) an Intervening Event or (y) receipt of a bona fide, unsolicited Acquisition Proposal not arising from any breach of Section 5.2 after the date of this Agreement that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, in each case, effect a Company Board Recommendation Change pursuant to clauses (i), (ii), (iii) or (vi) of such definition if (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Stockholders under applicable Law; (ii) the Company has provided at least twenty-four (24) hours prior written notice to Parent within that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the earlier reasons for such Company Board Recommendation Change (a “Recommendation Change Notice”), including a description of the Intervening Event in reasonable detail (in the case of an Intervening Event) or the information described in Section 5.2(d) (in the case of a Superior Proposal) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (iii) if requested by Parent after receipt of such notice, the Company shall have made its Representatives available to discuss with Parent’s Representatives and negotiate in good faith (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. New York City Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposallater at 5:00 p.m. New York City Time; provided, thathowever that in the event there is a material change to the facts and circumstances relating to the Intervening Event (in the case of an Intervening Event) or material revisions to the terms or conditions of the Superior Proposal (in the case of a Superior Proposal), the Company shall be required to deliver a new Recommendation Change Notice to Parent may make such request only once and to comply again with respect the requirements of this Section 5.3, except that references to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, the three (any action described 3) Business Day period in this clause (iiii) being referred shall be deemed references to as a “Company Adverse Change Recommendation”forty-eight (48) or hour period; and (iiiv) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering in good faith the terms of any proposed amendment or modification to abandonthis Agreement, materially delay, terminate or fail that the failure to consummate effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”)Stockholders under applicable Law.
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Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(1) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B2) approve, adopt, approveendorse, Table of Contents recommend or declare advisable, or publicly propose to approve, adopt, approveendorse, recommend or declare advisable, any Acquisition Proposal, (C3) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) business days after a written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (4) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend against acceptance of that the Company’s stockholders reject such tender offer or exchange offer within ten (10) Business Days business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) or (D5) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action or failure to take action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) ), or (ii) approve, adopt, approveendorse, recommend or declare advisable, or propose to approve, adopt, approveendorse, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any letter of intent, agreement in principle, acquisition agreement or other Contract (A) with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”Agreement entered into in compliance with Section 5.3(c)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Alder Biopharmaceuticals Inc)
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(A) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or PurchaserMerger Sub), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or PurchaserMerger Sub), the Company Board Recommendation, (B) approve, adopt, approveendorse, recommend or declare advisable, or publicly propose to approve, adopt, approveendorse, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) Business Days after a written request by Parent to do so (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time), (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to affirm the Company Board Recommendation and recommend against acceptance of that the Company’s shareholders reject such tender offer or exchange offer within ten (10) Business Days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time) or (DF) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date Company’s shareholders (any action or ten (10) Business Days after Parent requests such reaffirmation with respect failure to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (take any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) approve, adopt, approveendorse, recommend or declare advisable, or propose to approve, adopt, approveendorse, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any letter of intent, agreement in principle, acquisition agreement or other Contract (A) with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”Agreement entered into in compliance with Section 5.3(c)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Task Group Inc)
Company Board Recommendation. (a) Subject to Section 7.1(bSection 6.01(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.01(b), neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within five (5) business days after a written request by Parent to do so (or, if earlier, by the close of business on the End Date), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the two or three business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance of that the Company’s stockholders reject such tender offer or exchange offer within ten (10) Business Days business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the End Date) or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i(i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or cause or allow any Acquired the Company to execute or enter into any Contract (A) Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gilead Sciences, Inc.)
Company Board Recommendation. (a) Subject to Except as otherwise expressly provided in this Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period5.3, neither the Company Board nor any committee thereof shall (i) (A) withdraw withdraw, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)in any material respect, or publicly propose to withdraw withdraw, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Parent, the Company Board Recommendation, (Bii) adopt, approve, adopt a formal resolution to approve or recommend or declare advisable, propose publicly to approve or publicly propose to adopt, approve, recommend or declare advisablerecommend, any Acquisition Proposal, (Ciii) if a any tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 subject to Regulation 14D under the Exchange Act)Act is commenced, fail to recommend against acceptance in favor of such tender offer Acquisition Proposal in any solicitation or exchange offer recommendation statement on Schedule 14D-9 filed by the Company with the SEC, (iv) at any time after receipt or public announcement of an Acquisition Proposal, the Company Board shall have failed to publicly reaffirm the Company Board Recommendation within ten (10) Business Days or after receipt of written request by the Parent to do so (Dprovided that Parent shall not be permitted to make any such request on more than one (1) if any occasion in respect of (A) each Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request and (B) each material amendment or material modification of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to each such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, ) (any action described referred to in this clause the foregoing clauses (i), (ii), (iii) and (iv) being referred to as a “Company Adverse Change RecommendationBoard Recommendation Change”) ), or (iiv) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (other than an Acceptable Confidentiality Agreement entered into in the circumstances referred to in Section 5.2(c)) (A) with respect constituting or that could reasonably be expected to lead to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company requiring it to abandon, materially delay, terminate or fail to consummate the Transactions Merger and the other transactions contemplated by this Agreement (other than an Acceptable Confidentiality Agreement) (a “Specified Alternative Transaction Agreement”).
Appears in 1 contract
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents, as of the Agreement Date, that the Company Board, at a meeting duly called and held, has made the Company Board Recommendation. Subject to Section 7.1(b6.4(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.4(b), neither the Company Board nor any committee thereof shall (ii)(A) (A) withdraw or withhold (withhold, withdraw, amend, qualify or modify, change or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (withhold, withdraw, amend, qualify or modify, change or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, ; (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, ; (C) fail to publicly reaffirm the Company Board Recommendation within ten (10) days after Parent reasonably requests in writing or, if earlier, within two (2) Business Days before the Expiration Date (it being understood that the Company will have no obligation to make such reaffirmation on more than three (3) separate occasions); (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance of that the Company’s shareholders reject such tender offer or exchange offer within ten (10) Business Days after the commencement of such tender offer or exchange offer pursuant to Rule 14e-2(a) promulgated under the Exchange Act (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time); or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s shareholders (any action described in this clause (ii)(A) through (E) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) Proposal, requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Company Board Recommendation. (a) Subject to Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither Neither the Company Board nor any committee thereof shall (i) (A) withdraw withhold, withdraw, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Parent, or publicly propose to withdraw withhold, withdraw, amend or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Parent, the Company Board Recommendation, (Bii) adopt, approve, approve or recommend or declare advisable, or publicly propose to adopt, approve, approve or recommend (publicly or declare advisable, any otherwise) an Acquisition Proposal, (Ciii) if a tender offer or exchange offer for after the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning receipt of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made publicProposal, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent so requests such reaffirmation with respect in writing or (iv) fail to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified include the Company Board Recommendation in which case Parent may make such request once each time such material modification is made, the Proxy Statement (any action described in this clause clauses (i) being referred to as through (iv) a “Company Adverse Change RecommendationBoard Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) or (ii) adopt, approve, recommend or declare advisableof the Exchange Act, or propose any substantially similar communication, shall not be deemed to adoptbe a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement (including the provisions of Section 6.1), approve, recommend or declare advisable, enter into or allow at any Acquired Company time prior to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to causethe receipt of the Requisite Stockholder Approval, the Company Board may effect a Company Board Recommendation Change if the Company Board shall have determined in good faith (after reasonable consultation with outside legal counsel) that the failure to abandon, materially delay, terminate or fail effect a Company Board Recommendation Change would reasonably be expected to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (be a “Specified Agreement”)breach of its fiduciary duties under applicable Law. The Company shall provide Parent and Merger Sub with prompt written notice of any Company Board Recommendation Change.
Appears in 1 contract
Company Board Recommendation. (a) Subject to Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) if a tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).. (b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Offer Acceptance Time, if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal was made after the Agreement Date and did not result from or arise out of a breach of Section 6.3(a)) from any Person that has not been withdrawn and after consultation with the Company’s financial advisors and outside legal counsel, the Company Board shall have determined in good faith that such Acquisition Proposal constitutes a Superior Offer, the Company Board may make a Company Adverse Change Recommendation if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Law; (B) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(d)(i) at least three (3) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Superior Offer Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have provided to Parent the information (including a copy of any definitive agreement and related financing agreement) with respect to the Acquisition Proposal and all other information and materials to be provided in accordance with Section 6.3(d), (2) the Company shall have given Parent the three (3) Business Days after the Superior Offer Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer (to the extent Parent desires to do so), and, to the extent requested by Parent, shall have negotiated in good faith with Parent and its Representatives with respect to such proposed revisions or other
Appears in 1 contract
Samples: Tender and Support Agreement (Biodelivery Sciences International Inc)
Company Board Recommendation. (a) Subject to Section 7.1(b6.01(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.01(b), neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within five (5) business days after a written request by Parent to do so (or, if earlier, by the close of business on the End Date), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the two or three business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance of that the Company’s stockholders reject such tender offer or exchange offer within ten (10) Business Days business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or, if earlier, by the close of business on the End Date) or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or cause or allow any Acquired the Company to execute or enter into any Contract (A) Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal or (B) requiring, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (CymaBay Therapeutics, Inc.)
Company Board Recommendation. (a) Subject to Except as provided in Section 7.1(b5.02(f), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) (A) withhold or withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adoptmodify, approvequalify or amend the Company Board Recommendation in a manner adverse to Parent, recommend or declare advisable(C) fail to include the Company Board Recommendation in the Proxy Statement, (D) approve or publicly propose to adopt, approve, endorse or recommend or declare advisable, any Acquisition Proposal, (C) if or refrain from recommending against any Acquisition Proposal that is a tender offer or exchange offer for offer, within ten (10) business days after the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance commencement of such tender offer or exchange offer within ten (10) Business Days pursuant to Rule 14d-2 under the Exchange Act, or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days business days after receipt of a written request by Parent requests to make such public reaffirmation with respect to such following the receipt by the Company of a public Acquisition ProposalProposal (other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer covered by clause (D)) that has not been withdrawn; provided, that, that Parent may make any such request only once with respect in any ten (10) business day period and only once for each such public Acquisition Proposal and once for each public material amendment to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”, it being understood that a customary “Company stop, look or listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be prohibited and shall not, in and of itself, constitute an Adverse Change Recommendation”Recommendation Change) or (ii) adoptauthorize, approve, recommend cause or declare advisable, permit the Company or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company of its Subsidiaries to execute or enter into any Contract (A) with respect letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Acquisition Proposal or (B) requiringProposal, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an any Acceptable Confidentiality AgreementAgreement pursuant to Section 5.02(a) (each, a “Specified Company Acquisition Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navigators Group Inc)
Company Board Recommendation. (a) The Company hereby consents to the Offer and represents, as of the date of this Agreement, that the Company Board, at a meeting duly called and held, has unanimously made the Company Board Recommendation. Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board nor any committee thereof shall (i) (A) withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)) or fail to include in the Schedule 14D-9 when disseminated to the Company Stockholders, or publicly propose to withdraw or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or recommend, declare advisable, submit to the Company Stockholders or make any recommendation other than a rejection of, or publicly propose to adopt, approve, recommend or recommend, declare advisable, submit to the Company Stockholders or make any recommendation other than a rejection of, any Acquisition Proposal, (C) if fail to publicly reaffirm the Company Board Recommendation within ten business days after Parent so requests in writing, provided, that Parent may only make such request once every 30 days unless there has been a publicly disclosed change regarding an Acquisition Proposal or (D) in the case of a tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 subject to Regulation 14D under the Exchange Act), fail the Company Board fails to recommend against acceptance recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, rejection of such tender offer or exchange offer within ten (10) Business Days business days of the commencement of such tender offer or (D) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, exchange offer (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any Contract (A) with respect to any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, terminate, materially delay, terminate delay or fail to consummate consummate, or that would otherwise reasonably be expected to materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”Agreement in accordance with Section 5.3(c)).
Appears in 1 contract
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (ii)(A) (A) withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw withdraw, withhold or withhold qualify (or modify, change or qualify modify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) approve, adopt, approveendorse, recommend or declare advisable, or publicly propose to approve, adopt, approveendorse, recommend or declare advisable, any Acquisition Proposal, (C) after the public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three (3) business days after a written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), which request may be made once per applicable Acquisition Proposal, provided that Parent shall be entitled to make a new request each time there is a publicly disclosed material change in such applicable Acquisition Proposal, (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance of that the Company’s stockholders reject such tender offer or exchange offer within ten (10) Business Days business days after the commencement of such tender offer or exchange offer pursuant to Rule 14e-2(a) promulgated under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the Company’s stockholders, or (F) other than under the circumstances addressed in the preceding subclauses (C) and (D) if any Acquisition Proposal has been made public), fail to publicly reaffirm the Company Board Recommendation upon request of within five (5) business days after Parent within so requests in writing (it being understood that the earlier of Company will have no obligation to make such reaffirmation on more than three (3) Business Days prior to the then scheduled Expiration Date or ten (10occasions) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as a “Company Adverse Change RecommendationRecommendation Change”) ), or (ii) approve, adopt, approveendorse, recommend or declare advisable, or propose to approve, adopt, approveendorse, recommend or declare advisable, enter into or allow any Acquired the Company to execute or enter into any letter of intent, agreement in principle, acquisition agreement or other Contract (A) with respect to any Acquisition Proposal or (B) requiringto, or that is intended to or would reasonably expect be expected to lead to, any Acquisition Proposal, or Contract that would require, or would reasonably be expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Intercept Pharmaceuticals, Inc.)
Company Board Recommendation. (a) Subject to Section 7.1(b6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, subject to Section 6.1(b), neither the Company Board of Directors nor any committee thereof shall (i) (Ai)(A) withdraw or withhold (or modify, change modify or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change modify or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adopt, approve, recommend or declare advisable, or publicly propose to adopt, approve, recommend or declare advisable, any Acquisition Proposal, (C) after public announcement of an Acquisition Proposal (other than a tender offer or exchange offer), fail to publicly affirm the Company Board Recommendation within three business days after a written request by Parent to do so (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time), provided, that Parent may only make such request once with respect to any Acquisition Proposal (provided, that each time a Determination Notice is given Parent shall, subject to the following provision, be entitled to make a new such request); and provided, further, that the Company shall not be required to provide any such affirmation during the four or two business day periods, as applicable, following the giving of a Determination Notice, (D) following the commencement of a tender offer or exchange offer for relating to the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act)Shares by a Person unaffiliated with Parent, fail to publicly affirm the Company Board Recommendation and recommend against acceptance that the Company’s stockholders reject such tender offer or exchange offer within 10 business days after the commencement of such tender offer or exchange offer within ten pursuant to Rule 14d-9(f) promulgated under the Exchange Act (10or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Offer Acceptance Time) Business Days or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm include the Company Board Recommendation upon request of Parent within in the earlier of three (3) Business Days prior Schedule 14D-9 when filed with the SEC or disseminated to the then scheduled Expiration Date or ten (10) Business Days after Parent requests such reaffirmation with respect to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, Company’s stockholders (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”) or (ii) adopt, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, enter into or cause or allow any Acquired the Company to execute or enter into any Contract (A) Contract, letter of intent, memorandum of understanding, agreement in principle or term sheet with respect to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal Proposal, or (B) requiring, or that would reasonably expect expected to cause, the Company to abandon, materially delayterminate, terminate delay or fail to consummate consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) (a “Specified Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Stemline Therapeutics Inc)
Company Board Recommendation. (a) Subject to Except as provided in Section 7.1(b5.02(f), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall (ii)(A) (A) withhold or withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify, change or qualify in a manner adverse to Parent or Purchaser), the Company Board Recommendation, (B) adoptmodify, approvequalify or amend the Company Board Recommendation in a manner adverse to Parent, recommend or declare advisable(C) fail to include the Company Board Recommendation in the Proxy Statement, (D) approve or publicly propose to adopt, approve, endorse or recommend or declare advisable, any Acquisition Proposal, (C) if or refrain from recommending against any Acquisition Proposal that is a tender offer or exchange offer for offer, within ten (10) business days after the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance commencement of such tender offer or exchange offer within ten (10) Business Days pursuant to Rule 14d-2 under the Exchange Act, or (DE) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request of Parent within the earlier of three (3) Business Days prior to the then scheduled Expiration Date or ten (10) Business Days business days after receipt of a 44 written request by Parent requests to make such public reaffirmation with respect to such following the receipt by the Company of a public Acquisition ProposalProposal (other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer covered by clause (D)) that has not been withdrawn; provided, that, that Parent may make any such request only once with respect in any ten (10) business day period and only once for each such public Acquisition Proposal and once for each public material amendment to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”, it being understood that a customary “Company stop, look or listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be prohibited and shall not, in and of itself, constitute an Adverse Change Recommendation”Recommendation Change) or (ii) adoptauthorize, approve, recommend cause or declare advisable, permit the Company or propose to adopt, approve, recommend or declare advisable, enter into or allow any Acquired Company of its Subsidiaries to execute or enter into any Contract (A) with respect letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Acquisition Proposal or (B) requiringProposal, or that would reasonably expect to cause, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an any Acceptable Confidentiality AgreementAgreement pursuant to Section 5.02(a) (each, a “Specified Company Acquisition Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hartford Financial Services Group Inc/De)
Company Board Recommendation. (a) Subject to Section 7.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither Neither the Company Board nor any committee thereof shall (i) (A) withdraw withhold, withdraw, amend, qualify or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Newco, or publicly propose to withdraw withhold, withdraw, amend, qualify or withhold (or modify, change or qualify modify in a manner adverse to Parent or Purchaser)Newco, the Company Board Recommendation, (B) adopt, approve, approve or recommend or declare advisable, or publicly propose to adopt, approve, approve or recommend or declare advisable, any an Acquisition Proposal, (C) if a tender offer or exchange offer for the Company Common Stock that constitutes an Acquisition Proposal is commenced (within the meaning of Rule 14d-2 under the Exchange Act), fail to recommend against acceptance of such tender offer or exchange offer within ten (10) Business Days or (D) if any Acquisition Proposal has been made public, fail to publicly reaffirm the Company Board Recommendation upon request in the absence of Parent a publicly announced Acquisition Proposal within two (2) Business Days after Newco so requests in writing, (D) fail to recommend against any publicly announced Acquisition Proposal and reaffirm the earlier Company Board Recommendation, in each case, within ten (10) Business Days following the public announcement of three such Acquisition Proposal and in any event at least two (32) Business Days prior to the then scheduled Expiration Date Company Stockholders Meeting, or ten (10E) Business Days after Parent requests such reaffirmation with respect fail to such Acquisition Proposal; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified include the Company Board Recommendation in which case Parent may make such request once each time such material modification is made, the Proxy Statement (any action described in this clause clauses (iA) being referred to as through (E), a “Company Adverse Change RecommendationBoard Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Company Board or any authorized committee thereof to the Company Stockholders pursuant to Rule 14d-9(f) or (ii) adopt, approve, recommend or declare advisableof the Exchange Act, or propose any substantially similar communication, shall not be deemed to adoptbe a Company Board Recommendation Change; and provided further, approve, recommend or declare advisable, enter into or allow that at any Acquired Company time prior to execute or enter into any Contract (A) with respect to any Acquisition Proposal or (B) requiring, or that would reasonably expect to causethe receipt of the Requisite Stockholder Approval, the Company to abandon, materially delay, terminate or fail to consummate the Transactions (other than an Acceptable Confidentiality Agreement) (Board and/or any authorized committee thereof may effect a “Specified Agreement”)Company Board Recommendation Change in accordance with Section 5.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sumtotal Systems Inc)
