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main | contract_115 | (c) Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisor and outside counsel, it determines that the failure to take such action would be inconsistent with the fiduciary duties of directors under Indiana Law, (x) make an Adverse Recommendation Change in response to a Change in Circumstance, (y) make an Adverse Recommendation Change in response to a Superior Proposal or (z) cause or permit the Company to terminate this Agreement in order to enter into a binding written definitive agreement to effect a Superior Proposal, if and only if:
(i) the Company shall have given Parent notice at least four (4) Business Days prior to making any such Adverse Recommendation Change or causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, which notice shall include (A) the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board of Directors, the identity of the Person making the Superior Proposal and copies of proposed definitive documentation with respect to the Superior Proposal (it being understood and agreed that (1) any amendment to any financial terms or other terms that are material of such Superior Proposal shall require a new notice and an additional three (3) Business Day period prior to taking any specified action and (2) in determining whether to make an Adverse Recommendation Change or to cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to the financial and other terms of this Agreement proposed by Parent in writing to the Company (and not revoked) in response to any such notice or otherwise within the periods described above) or (B) a reasonably detailed description of the material event or development constituting such Change in Circumstance;
(ii) the Company has and has caused its Subsidiaries and its and their respective Representatives to make themselves reasonably available to negotiate with Parent and its Representatives during the period referred to in clause (i) above to the extent requested in writing by Parent in order to permit Parent to propose one or more amendments to this Agreement that would result in such Takeover Proposal ceasing to constitute a Superior Proposal or such other matter no longer constituting a Change in Circumstance;
(iii) after considering any proposed binding offers to amend this Agreement committed to in writing by Parent (and not revoked) during the period referred to in clause (i) above, if any, the Company Board of Directors shall have determined in good faith, after consultation with its financial advisor and outside counsel, that the failure to make the Adverse Recommendation Change in response to such Superior Proposal or Change in Circumstance or cause or permit the Company to terminate this Agreement in response to such Superior Proposal would be inconsistent with the fiduciary duties of directors under Indiana Law. (Page 49)
(i) the Company shall have given Parent notice at least four (4) Business Days prior to <omitted> causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, <omitted> (it being understood and agreed that <omitted> in determining whether to <omitted> cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to <omitted> this Agreement proposed by Parent
(c)Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisor and outside counsel, it determines that the failure to take such action would be inconsistent with the fiduciary duties of directors under Indiana Law, (x) make an Adverse Recommendation Change in response to a Change in Circumstance, (y) make an Adverse Recommendation Change in response to a Superior Proposal or (z) cause or permit the Company to terminate this Agreement in order to enter into a binding written definitive agreement to effect a Superior Proposal, if and only if:
(i) the Company shall have given Parent notice at least four (4) Business Days prior to making any such Adverse Recommendation Change or causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, which notice shall include (A) the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board of Directors, the identity of the Person making the Superior Proposal and copies of proposed definitive documentation with respect to the Superior Proposal (it being understood and agreed that (1) any amendment to any financial terms or other terms that are material of such Superior Proposal shall require a new notice and an additional three (3) Business Day period prior to taking any specified action and (2) in determining whether to make an Adverse Recommendation Change or to cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to the financial and other terms of this Agreement proposed by Parent in writing to the Company (and not revoked) in response to any such notice or otherwise within the periods described above) or (B) a reasonably detailed description of the material event or development constituting such Change in Circumstance; (Page 49)
(i) the Company shall have given Parent notice at least four (4) Business Days prior to <omitted> causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, <omitted> (it being understood and agreed that (1) any amendment to any financial terms or other terms that are material of such Superior Proposal shall require a new notice and an additional three (3) Business Day period prior to taking any specified action and (2) in determining whether to <omitted> cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to <omitted> this Agreement proposed by Parent | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_1 | Section 6.3. Acquisition Proposals. <omitted> (e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:(i)the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if, and only if, <omitted>
(C) after negotiating, and causing its Representatives to negotiate, in good faith during the Notice Period to amend the terms of this Agreement such that the Acquisition Proposal that is subject of the Determination Notice no longer continues to constitute a Superior Proposal (if such negotiation is desired by Purchaser), the Company Board or any committee thereof determines in good faith, after consultation with outside legal counsel and financial advisors, after taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period, that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal and that the failure to terminate this Agreement to enter into such Alternative Acquisition Agreement would be inconsistent with its fiduciary duties under applicable Law; <omitted>
“Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth (4th) Business Day thereafter at 5:00 p.m. Eastern Time; provided, that, with respect to any change in the financial terms or any other material change of the terms of any Superior Proposal, or any material change to the facts and circumstances relating to any Intervening Event, the Notice Period will extend until 5:00 p.m. Eastern Time on the third (3rd) Business Day after delivery of such revised Determination Notice. (Page 24) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_79 | 6.3 No Solicitation by the Company. <omitted> Notwithstanding the foregoing, in the event that, prior to obtaining the Company Stockholder Approval, the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that it has received a Company Superior Proposal that was not solicited, initiated, knowingly encouraged or knowingly facilitated or otherwise procured in violation of this Section 6.3(a) (other than any violation that is immaterial in scope and effect), the Company Board may effect a Company Recommendation Change or terminate this Agreement pursuant to Section 8.1(g) if (A) the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (B) the Company has notified Parent in writing that it intends to take such action, (C) the Company has provided Parent with a copy of the proposed definitive agreements between the Company and the person making such Company Superior Proposal, and the identity of the person making such Company Superior Proposal, (D) for a period of four (4) Business Days following the notice delivered pursuant to clause (B) of this Section 6.3(b), the Company shall have discussed and negotiated in good faith and made the Company’s Representatives available to discuss and negotiate in good faith (in each case to the extent Parent desires to negotiate) with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement or the transactions contemplated by this Agreement so that the failure to take such action would no longer be inconsistent with the fiduciary duties under applicable Law of the Company Board (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period that shall expire on the later to occur of (I) two (2) Business Days following delivery of such new notice from the Company to Parent and (II) the expiration of the original four (4)-Business Day period described in clause (D) above), and (E) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation with its outside financial advisors and outside legal counsel, and after considering the terms of any proposed amendment or modification to this Agreement, that (x) the Company Alternative Transaction that is the subject of the notice described in clause (B) above still constitutes a Company Superior Proposal and (y) the failure to take such action would still be inconsistent with its fiduciary duties under applicable Law. (Page 49)
6.3 No Solicitation by the Company. <omitted> prior to obtaining the Company Stockholder Approval, <omitted> the Company Board may <omitted> terminate this Agreement pursuant to Section 8.1(g) if <omitted> (B) the Company has notified Parent in writing that it intends to take such action, <omitted> (D) for a period of four (4) Business Days following the notice delivered pursuant to clause (B) of this Section 6.3(b), the Company shall have discussed and negotiated in good faith and made the Company’s Representatives available to discuss and negotiate in good faith (in each case to the extent Parent desires to negotiate) with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement (Page 49)
6.3 No Solicitation by the Company. <omitted> Notwithstanding the foregoing, in the event that, prior to obtaining the Company Stockholder Approval, the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that it has received a Company Superior Proposal that was not solicited, initiated, knowingly encouraged or knowingly facilitated or otherwise procured in violation of this Section 6.3(a) (other than any violation that is immaterial in scope and effect), the Company Board may effect a Company Recommendation Change or terminate this Agreement pursuant to Section 8.1(g) if (A) the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (B) the Company has notified Parent in writing that it intends to take such action, (C) the Company has provided Parent with a copy of the proposed definitive agreements between the Company and the person making such Company Superior Proposal, and the identity of the person making such Company Superior Proposal, (D) for a period of four (4) Business Days following the notice delivered pursuant to clause (B) of this Section 6.3(b), the Company shall have discussed and negotiated in good faith and made the Company’s Representatives available to discuss and negotiate in good faith (in each case to the extent Parent desires to negotiate) with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement or the transactions contemplated by this Agreement so that the failure to take such action would no longer be inconsistent with the fiduciary duties under applicable Law of the Company Board (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period that shall expire on the later to occur of (I) two (2) Business Days following delivery of such new notice from the Company to Parent and (II) the expiration of the original four (4)-Business Day period described in clause (D) above), and (E) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation with its outside financial advisors and outside legal counsel, and after considering the terms of any proposed amendment or modification to this Agreement, that (x) the Company Alternative Transaction that is the subject of the notice described in clause (B) above still constitutes a Company Superior Proposal and (y) the failure to take such action would still be inconsistent with its fiduciary duties under applicable Law. (Page 49)
6.3 No Solicitation by the Company. <omitted> prior to obtaining the Company Stockholder Approval, <omitted> the Company Board may <omitted> terminate this Agreement pursuant to Section 8.1(g) if <omitted> (B) the Company has notified Parent in writing that it intends to take such action, <omitted> (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period that shall expire on the later to occur of (I) two (2) Business Days following delivery of such new notice from the Company to Parent and (II) the expiration of the original four (4)-Business Day period described in clause (D) above), (Page 49) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_75 | Section 5.3 Acquisition Proposals.
<omitted>
(e) Change of Recommendation / Superior Proposal Termination. Notwith-standing anything to the contrary in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, (x) the Company Board may make a Change of Recommendation (1) if the Company receives a bona fide unsolicited Acquisition Proposal following the Agreement Date that did not result from a violation of Section 5.3 and the Company Board determines in good faith (after consultation with the Company’s outside legal and financial advisors) based on the information then available that such Acquisition Proposal constitutes a Superior Proposal or (2) in response to a Company Intervening Event, in either case of (1) or (2), only if the Company Board determines in good faith that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (y) if the Company Board is permitted to make a Change of Recommendation pursuant to clause (x)(1), the Company may also terminate this Agreement pursuant to Section 7.1 to enter into an Alternative Acquisition Agreement with respect to the applicable Superior Proposal; provided, however, that neither the Company Board or the Company shall take any of the foregoing actions unless:
(i) the Company shall have complied in all material respects with its obligations under this Section 5.3(e);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to Parent at least ninety-six (96) hours in advance (the “Notice Period”) to the effect that the Company Board intends to take such action and specifying in writing, in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with an Acquisition Proposal, the information specified by Section 5.3(c) with respect to such Acquisition Proposal (it being understood and agreed that the delivery of a Determination Notice shall not, in and of itself, be deemed a Change of Recommendation);
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(iii) the Company shall have, during the Notice Period negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement such that (A) the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law and (B) with respect to any such action to be taken in connection with an Acquisition Proposal, such Acquisition Proposal ceases to constitute a Superior Proposal; provided, however, that in the event of any material revision to the terms of such Superior Proposal, the Company shall be required to deliver a new Determination Notice to Parent and to comply with the requirements of Section 5.3(e)(ii) and this Section 5.3(e)(iii) with respect to such new Determination Notice (except that the references to ninety-six (96) hours shall be deemed to be two (2) Business Days) and the revised Superior Proposal contemplated thereby;
(iv) at or following the end of such Notice Period, the Company Board shall have determined in good faith based on the information then available that (A) failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law and (B) with respect to any such action to be taken in connection with an Acquisition Proposal, such Acquisition Proposal continues to constitute a Superior Proposal, in each case taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (iii) above; and
(v) in the event of a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 7.1 and paid the Company Termination Fee in accordance with Section 7.4. (Pages 44-45) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_38 | (b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the receipt of the Company Required Vote: (i) if the Company has received a written Qualifying Acquisition Proposal (which Acquisition Proposal did not arise out of a breach of Section 4.3 (other than an unintentional and immaterial breach)) from any Person that has not been withdrawn and after consultation with outside legal counsel, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, prior to receipt of the Company Required Vote (A) the Company Board may make a Company Adverse Change Recommendation or (B) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer in accordance with Section 7.1(h), if and only if: (1) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, that the failure to do so would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (2) 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 7.1(h) at least four business days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not, in and of itself, constitute a Company Adverse Change Recommendation if the Company Board publicly reaffirms the Company Board Recommendation and Company Board Determination no later than the day immediately following the expiration of the negotiation period described in this clause (i)); and (3) (x) the Company shall have provided to Parent a summary of the material terms and conditions of the Acquisition Proposal and provided to Parent the latest drafts of the definitive agreement to effect such Superior Offer, any financing commitments or other agreements to be entered into in connection with such Superior Offer, (y) the Company shall have given Parent four business days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent requests to negotiate) with respect to such proposed revisions or other proposal, if any, and (z) after considering the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and financial advisors, the Company Board shall have determined, in good faith, that such Acquisition 40
Proposal is a Superior Offer and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(h) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not, in and of itself, be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 5.1 to the extent that any such communication expressly reaffirms the Company Board Recommendation. The provisions of this Section 5.1(b)(i) shall also apply to any amendment to any of the economic terms of the Acquisition Proposal or any other material amendments to the terms of any Acquisition Proposal and require a new Determination Notice, except that the references to four business days shall be deemed to be three business days, during which time the Company and its Representatives shall continue to comply with clause (3) above; (Pages 44-45) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_84 |
(i) the Conflicts Committee and the Company Board may make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 10.1(d)(iii) (including payment in full of the Company Termination Fee) in order to substantially concurrently enter into a Company Alternative Acquisition Agreement with respect to a Superior Proposal if (i) the Company receives a written Acquisition Proposal that the Conflicts Committee and the Company Board believe in good faith to be bona fide, (ii) such Acquisition Proposal was not the result of a violation of Section 8.4(a), (iii) the Conflicts Committee and the Company Board determine in good faith (after consultation with their respective outside legal and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal, after taking into account all of the adjustments that have been offered (and not withdrawn) by Parent pursuant to Section 8.4(f)(i), and (D) the Conflicts Committee and the Company Board determine in good faith (after consultation with the their respective outside legal advisors), that the failure to make a Company Adverse Recommendation Change would be inconsistent with its duties under applicable Law; and (Page 112)
(f) T h e Conflicts Committee and the Company Board shall not be entitled to effect a Company Adverse Recommendation Change as permitted under Section 8.4(e) unless, prior to taking such action, (i) the Company has notified Parent in writing that it intends to effect a Company Adverse Recommendation Change specifying in reasonable detail the reasons therefor, and attaching a copy of the Superior Proposal that is the basis of such action in the case of Section 8.4(e)(i) (such notice, a “Company Change Notice” ) and (ii) during the four (4) Business Day period following Parent’s receipt of a Company Change Notice, the Company and the Conflicts Committee shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused their respective financial and legal advisors to offer to negotiate with (and if accepted, negotiated in good faith with), Parent in making adjustments to the terms and conditions of this Agreement such that, (x) in circumstances involving or relating to an Acquisition Proposal, the related Superior Proposal ceases to be a Superior Proposal, or (y) in circumstances not involving or relating to an Acquisition Proposal, such terms are as Parent proposes; and provided, that any amendment, supplement or modification to the financial or any other material terms of any Acquisition Proposal shall be deemed a new Acquisition Proposal
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and the Company may not make a Company Adverse Recommendation Change pursuant to this Section 8.4 unless the Company has complied with the requirements of this Section 8.4(f)(i) with respect to each such new Acquisition Proposal, including sending a Company Change Notice with respect to such Acquisition Proposal, provided, that the Company shall be obligated to negotiate for a period of only three (3) Business Days from such new Company Change Notice, and (iii) following the end of the four (4) Business Day period or three (3) Business Day period (as applicable) contemplated by the immediately preceding clause (i), the Conflicts Committee and the Company Board determine, in good faith that (x) following consultation with their respective outside legal and financial advisors in circumstances involving or relating to an Acquisition Proposal, the Superior Proposal giving rise to the Company Change Notice continues to constitute a Superior Proposal (taking into account modifications or amendments to this Agreement proposed by Parent in response to such Company Change Notice) and (y) in any case, following consultation with the Company Board’s and the Conflicts Committee’s outside legal advisors, the failure to make such Company Adverse Recommendation Change would be inconsistent with its duties under applicable Law. (Pages 112-113)
(f) The Parent Board shall not be entitled to effect a Parent Adverse Recommendation Change as permitted under Section 8.5(e) unless, prior to taking such action, (i) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change specifying in reasonable detail the reasons therefor, and attaching a copy of the Superior Proposal that is the basis of such action in the case of Section 8.5(e)(i) (such notice, a “Parent Change Notice”) and (ii) during the four (4) Business Day period following the Company’s receipt of a Parent Change Notice, Parent shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal
th
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advisors to offer to negotiate with (and if accepted, negotiated in good faith with), the Company in making adjustments to the terms and conditions of this Agreement such that, (x) in circumstances involving or relating to an Acquisition Proposal, the related Superior Proposal ceases to be a Superior Proposal, or (y) in circumstances not involving or relating to an Acquisition Proposal, such terms are as the Company proposes; and provided, that any amendment, supplement or modification to the financial or any other material terms of any Acquisition Proposal shall be deemed a new Acquisition Proposal and Parent may not make a Parent Adverse Recommendation Change pursuant to this Section 8.5 unless Parent has complied with the requirements of this Section 8.5(f)(i) with respect to each such new Acquisition Proposal, including sending a Parent Change Notice with respect to such Acquisition Proposal, provided, that Parent shall be obligated to negotiate for a period of only three (3) Business Days from such new Parent Change Notice, and (iii) following the end of the four (4) Business Day period or three (3) Business Day period (as applicable) contemplated by the immediately preceding clause (i), the Parent Board determines, in good faith that (x) following consultation with Parent’s outside legal and financial advisors in circumstances involving or relating to an Acquisition Proposal, the Superior Proposal giving rise to the Parent Change Notice continues to constitute a Superior Proposal (taking into account modifications or amendments to this Agreement proposed by the Company in response to such Parent Change Notice) and (y) in any case, following consultation with Parent’s outside legal advisors, the failure to make such Parent Adverse Recommendation Change would be inconsistent with its duties under applicable Law. (Pages 116-117) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_52 | Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) informing Parent that the Company has determined that a Company Acquisition Proposal constitutes a Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing a copy of the draft agreement intended to effect such Company Superior Proposal, (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), permitted Parent to make counteroffers or proposals, including to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so), and (iii) after complying with clauses (i) and (ii), determined in good faith (after consultation with the Company’s outside legal counsel and financial advisors and taking into account any such counteroffer or proposed amendment to the terms and conditions of this Agreement) that such Company Acquisition Proposal remains a Company Superior Proposal; provided, however, that if during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent and shall comply with the requirements of this Section 5.3(f) with respect to such new Notice of Company Superior Proposal (except that the “four (4) Business Day” period referred to in clause (ii) of this proviso shall instead be a two (2) Business Day period). (Page 59)
Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided <omitted> notice to Parent (a “Notice of Company Superior Proposal”) <omitted> (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), permitted Parent to make counteroffers or proposals, including to amend the terms and conditions of this Agreement (Page 59)
Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) informing Parent that the Company has determined that a Company Acquisition Proposal constitutes a Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing a copy of the draft agreement intended to effect such Company Superior Proposal, (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), permitted Parent to make counteroffers or proposals, including to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so), and (iii) after complying with clauses (i) and (ii), determined in good faith (after consultation with the Company’s outside legal counsel and financial advisors and taking into account any such counteroffer or proposed amendment to the terms and conditions of this Agreement) that such Company Acquisition Proposal remains a Company Superior Proposal; provided, however, that if during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent and shall comply with the requirements of this Section 5.3(f) with respect to such new Notice of Company Superior Proposal (except that the “four (4) Business Day” period referred to in clause (ii) of this proviso shall instead be a two (2) Business Day period). (Page 59)
Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided <omitted> notice to Parent (a “Notice of Company Superior Proposal”) <omitted> provided, however, that if during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent <omitted> (except that the “four (4) Business Day” period referred to in clause (ii) of this proviso shall instead be a two (2) Business Day period). (Page 59) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_59 | Section 5.4 Acquisition Proposals. <omitted> (d) Notwithstanding anything to the contrary set forth in this Section 5.4, following receipt of a written Acquisition Proposal that did not result from a breach of this Section 5.4, and that the Company Board (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, the Company Board and the Special Committee may at any time prior to the receipt of the Company Stockholder Approval, but not after, make an Adverse RecommendationChange or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: <omitted> (i) (A) the Company shall have provided to Parent four Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board (acting upon the recommendation of the Special Committee) has determined to make an Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.1(c)(ii) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.1(c)(ii), as applicable, (x) the Company shall have used commercially reasonable efforts to engage in good faith with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider any adjustments proposed by Parent to the terms and conditions of this Agreement such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal and (y) in determining whether to make an Adverse Recommendation Change or to effect a termination in accordance with Section 7.1(c)(ii), the Company Board and the Special Committee shall have taken into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice; (Pages 43-44)
Section 5.4 Acquisition Proposals. <omitted> the Company Board and the Special Committee may <omitted> terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii) <omitted> if all of the following conditions are met: (i) (A) the Company shall have provided to Parent four Business Days’ <omitted> notice, which shall state expressly <omitted> (3) that, <omitted> the Company Board (acting upon the recommendation of the Special Committee) has determined <omitted> to terminate this Agreement in accordance with Section 7.1(c)(ii) in order to enter into the Alternative Acquisition Agreement, as applicable, and <omitted> the Company shall have used commercially reasonable efforts to engage in good faith with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider any adjustments proposed by Parent to the terms and conditions of this Agreement (Pages 43-44)
Section 5.4 Acquisition Proposals. <omitted> (d) Notwithstanding anything to the contrary set forth in this Section 5.4, following receipt of a written Acquisition Proposal that did not result from a breach of this Section 5.4, and that the Company Board (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, the Company Board and the Special Committee may at any time prior to the receipt of the Company Stockholder Approval, but not after, make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: (i) (A) the Company shall have provided to Parent four Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board (acting upon the recommendation of the Special Committee) has determined to make an Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.1(c)(ii) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.1(c)(ii), as applicable, (x) the Company shall have used commercially reasonable efforts to engage in good faith with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider any adjustments proposed by Parent to the terms and conditions of this Agreement such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal and (y) in determining whether to make an Adverse Recommendation Change or to effect a termination in accordance with Section 7.1(c)(ii), the Company Board and the Special Committee shall have taken into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice; (Pages 43-44)
Section 5.4 Acquisition Proposals. <omitted> the Company Board and the Special Committee may <omitted> terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii) <omitted> if all of the following conditions are met: (i) (A) the Company shall have provided to Parent <omitted> written notice, which shall state expressly <omitted> (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board (acting upon the recommendation of the Special Committee) has determined to <omitted> terminate this Agreement in accordance with Section 7.1(c)(ii) (Pages 43-44) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_99 | 6.3 No Solicitation by the Company. <omitted> (f) The Company shall not be entitled to <omitted> terminate this Agreement pursuant to Section 6.3(d) and Section 8.1(e) unless (x) the Company shall have provided to Parent at least five (5) Business Days’ prior written notice (the “Company Notice Period”) of the Company’s intention to take such action, which notice shall specify the material terms and conditions of such Company Acquisition Proposal (and have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Company Acquisition Proposal), or a detailed written description of such Company Intervening Event, as applicable, and (y):
(i) during the Company Notice Period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent regarding any adjustment or amendment to this Agreement or any other agreement proposed in writing by Parent; and
(ii) the Company Board shall have considered in good faith any proposed adjustments or amendments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent no later than 11:59 a.m., New York City time, on the last day of the Company Notice Period and shall have determined in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that (A) the failure to <omitted> terminate this Agreement pursuant to Section 6.3(d) and Section 8.1(e), as applicable, would breach the directors’ fiduciary duties under applicable Law and (B) in the case of any action proposed to be taken pursuant to Section 6.3(d), such Company Acquisition Proposal continues to constitute a Superior Company Proposal. Any (A) material changes relating to such Company Intervening Event or (B) material revisions to such Superior Company Proposal offered in writing by the party making any such Superior Company Proposal, as applicable, shall constitute a new Company Intervening Event or Company Acquisition Proposal, as applicable, and, in each case, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 6.3(f) with respect to such new written notice, except that the Company Notice Period shall be four (4) Business Days (rather than five (5) Business Days) with respect thereto, but no such new written notice shall shorten the original Company Notice (Pages 55-56) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_95 | 6.3 No Solicitation by NIC. <omitted> (d) Notwithstanding anything in this Section 6.3 to the contrary, but subject to Section 6.3(e), at any time prior to the NIC StockholderApproval being obtained, the NIC Board of Directors may <omitted> (ii) make a Change of Recommendation (of the type contemplated by Section 6.3(a)(iv) or Section 6.3(a)(v)) and cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h)in order to enter into a definitive agreement providing for an unsolicited Acquisition Proposal received after the date of this Agreement (which, for the avoidance of doubt, did not result from a breach of Section 6.3(a)(i) or (ii)and such Acquisition Proposal is not withdrawn) if the NIC Board of Directors determines in good faith after consultation with NIC’s outside legal counsel and financial advisors that such Acquisition Proposal constitutes a Superior Proposal; provided that notwithstanding anything to the contrary herein, neither NIC nor any NIC Subsidiary shall enter into any NIC Acquisition Agreement unless thisAgreement has been terminated in accordance with Section 8.1. <omitted>
(e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action and specifying the material terms and conditions of the Acquisition Proposal, including a copy of any proposed definitive documentation, and, during such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day), NIC shall cause its executive officers and direct its other Representatives to negotiate in good faith (to the extent Tyler desires to negotiate) any proposal by Tyler to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal, and at the end of such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day) the NIC Board of Directors again makes the determination under Section 6.3(d)(ii) (after in good faith taking into account the amendments to this Agreement proposed by Tyler). With respect to Section 6.3(e)(ii), i f there are any material amendments, revisions, or changes to the material terms of any such Superior Proposal (including any revision to the amount, form, or mix of consideration NIC Stockholders would receive as a result of the Superior Proposal), NIC shall notify Tyler of each such amendment, revision, or change in compliance with Section 6.3(c) and the applicable four-Business Day period shall be extended until at least two Business Days after the time that Tyler receives notification from NIC of each such revision, and the NIC Board of Directors shall not take any such action permitted under Section 6.3(d)(ii) prior to the end of any such period (which period shall expire at 11:59 p.m., Central Time, on the applicable day) as so extended in accordance with the terms of this Section 6.3(e). (Page 37)
6.3 No Solicitation by NIC. <omitted> (d) <omitted> subject to Section 6.3(e), <omitted> the NIC Board of Directors may <omitted> cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h) <omitted>
(e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action <omitted> and, during such four-Business Day period <omitted> NIC shall cause its executive officers and direct its other Representatives to negotiate in good faith <omitted> any proposal by Tyler to amend the terms and conditions of this Agreement (Page 37)
6.3 No Solicitation by NIC. <omitted> (d) Notwithstanding anything in this Section 6.3 to the contrary, but subject to Section 6.3(e), at any time prior to the NIC StockholderApproval being obtained, the NIC Board of Directors may <omitted> (ii) make a Change of Recommendation (of the type contemplated by Section 6.3(a)(iv) or Section 6.3(a)(v)) and cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h)in order to enter into a definitive agreement providing for an unsolicited Acquisition Proposal received after the date of this Agreement (which, for the avoidance of doubt, did not result from a breach of Section 6.3(a)(i) or (ii)and such Acquisition Proposal is not withdrawn) if the NIC Board of Directors determines in good faith after consultation with NIC’s outside legal counsel and financial advisors that such Acquisition Proposal constitutes a Superior Proposal; provided that notwithstanding anything to the contrary herein, neither NIC nor any NIC Subsidiary shall enter into any NIC Acquisition Agreement unless thisAgreement has been terminated in accordance with Section 8.1. <omitted> (e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action and specifying the material terms and conditions of the Acquisition Proposal, including a copy of any proposed definitive documentation, and, during such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day), NIC shall cause its executive officers and direct its other Representatives to negotiate in good faith (to the extent Tyler desires to negotiate) any proposal by Tyler to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal, and at the end of such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day) the NIC Board of Directors again makes the determination under Section 6.3(d)(ii) (after in good faith taking into account the amendments to this Agreement proposed by Tyler). With respect to Section 6.3(e)(ii), i f there are any material amendments, revisions, or changes to the material terms of any such Superior Proposal (including any revision to the amount, form, or mix of consideration NIC Stockholders would receive as a result of the Superior Proposal), NIC shall notify Tyler of each such amendment, revision, or change in compliance with Section 6.3(c) and the applicable four-Business Day period shall be extended until at least two Business Days after the time that Tyler receives notification from NIC of each such revision, and the NIC Board of Directors shall not take any such action permitted under Section 6.3(d)(ii) prior to the end of any such period (which period shall expire at 11:59 p.m., Central Time, on the applicable day) as so extended in accordance with the terms of this Section 6.3(e). (Page 37)
6.3 No Solicitation by NIC. <omitted> (d) <omitted> subject to Section 6.3(e), <omitted> the NIC Board of Directors may <omitted> cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h) <omitted>
(e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action <omitted> With respect to Section 6.3(e)(ii), i f there are any material amendments, revisions, or changes to the material terms of any such Superior Proposal (including any revision to the amount, form, or mix of consideration NIC Stockholders would receive as a result of the Superior Proposal), NIC shall notify Tyler of each such amendment, revision, or change in compliance with Section 6.3(c) and the applicable four-Business Day period shall be extended until at least two Business Days after the time that Tyler receives notification from NIC of each such revision, and the NIC Board of Directors shall not take any such action permitted under Section 6.3(d)(ii) prior to the end of any such period (which period shall expire at 11:59 p.m., Central Time, on the applicable day) as so extended in accordance with the terms of this Section 6.3(e). (Page 37) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_113 | Section 6.3. Acquisition Proposals. <omitted>
(e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.3(a) and that the Company Board or a committee thereof determines in good faith, after consultation with outside counsel, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal and that the failure to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, after consultation with outside counsel and taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period;
<omitted>
(iv) The provisions of this Section 6.3(e) apply to any material amendment to the financial terms of any applicable Superior Proposal with respect to Section 6.3(e)(i) and Section 6.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C) as the case may be. During the Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential changes to this Agreement in such a manner that would eliminate the need for taking the actions set forth in Sections 6.3(e)(i)-(ii) (and in respect of a Superior Proposal, would cause such Superior Proposal to no longer constitute a Superior Proposal).
<omitted>
“Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth (4th) Business Day thereafter at 5:00 p.m. Eastern Time; provided, that, with respect to any material change in the financial terms of any Superior Proposal, the Notice Period will extend until 5:00 p.m. Eastern Time on the second (2nd) Business Day after delivery of such revised Determination Notice; provided, further, that if fewer than five (5) Business Days remain prior to the scheduled Expiration Date and Purchaser has not extended the Offer pursuant to Section 1.1(a)(ii), the Notice Period will be the period beginning upon delivery by the Company to Parent of a Determination Notice and ending twenty-four (24) hours thereafter. (Page 47)
Section 6.3. Acquisition Proposals. <omitted>
(e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that <omitted> the Company Board or a committee thereof determines in good faith, after consultation with outside counsel, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal <omitted> taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period;
<omitted>
(iv) <omitted> During the Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential changes to this Agreement in such a manner that would eliminate the need for taking the actions set forth in Sections 6.3(e)(i)-(ii) (and in respect of a Superior Proposal, would cause such Superior Proposal to no longer constitute a Superior Proposal).
<omitted>
“Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth (4th) Business Day thereafter at 5:00 p.m. Eastern Time; (Page 47)
Section 6.3. Acquisition Proposals. <omitted>
(e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that <omitted> the Company Board or a committee thereof determines in good faith, after consultation with outside counsel, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal and that the failure to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, after consultation with outside counsel and taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period;
<omitted>
(iv) The provisions of this Section 6.3(e) apply to any material amendment to the financial terms of any applicable Superior Proposal with respect to Section 6.3(e)(i) and Section 6.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C) as the case may be. During the Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential changes to this Agreement in such a manner that would eliminate the need for taking the actions set forth in Sections 6.3(e)(i)-(ii) (and in respect of a Superior Proposal, would cause such Superior Proposal to no longer constitute a Superior Proposal).
<omitted>
“Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth (4th) Business Day thereafter at 5:00 p.m. Eastern Time; provided, that, with respect to any material change in the financial terms of any Superior Proposal, the Notice Period will extend until 5:00 p.m. Eastern Time on the second (2nd) Business Day after delivery of such revised Determination Notice; provided, further, that if fewer than five (5) Business Days remain prior to the scheduled Expiration Date and Purchaser has not extended the Offer pursuant to Section 1.1(a)(ii), the Notice Period will be the period beginning upon delivery by the Company to Parent of a Determination Notice and ending twenty-four (24) hours thereafter. (Page 47)
Section 6.3. Acquisition Proposals. <omitted>
(e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that <omitted> the Company Board or a committee thereof determines in good faith, after consultation with outside counsel, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal <omitted> taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed to make during the Notice Period;
<omitted>
(iv) The provisions of this Section 6.3(e) apply to any material amendment to the financial terms of any applicable Superior Proposal with respect to Section 6.3(e)(i) and Section 6.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C) as the case may be. During the Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential changes to this Agreement in such a manner that would eliminate the need for taking the actions set forth in Sections 6.3(e)(i)-(ii) (and in respect of a Superior Proposal, would cause such Superior Proposal to no longer constitute a Superior Proposal).
<omitted>
“Notice Period” means <omitted> ; provided, that, with respect to any material change in the financial terms of any Superior Proposal, the Notice Period will extend until 5:00 p.m. Eastern Time on the second (2nd) Business Day after delivery of such revised Determination Notice; (Page 47) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_53 | Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) Notwithstanding anything in this Agreement to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, if a written Acquisition Proposal that did not otherwise result from a breach (other than an unintentional or de minimis breach) of Section 6.1 is received by the Company, and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may, if the Board of Directors of the Company has determined in good faith after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary -40-
duties under applicable Law, (x) effect a Change of Recommendation and/or (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i); provided further, that, prior to taking such action described in clauses (x) and/or (y) above, (A) the Company shall give Parent written notice four (4) Business Days in advance (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4 th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), which notice shall set forth in writing (I) that the Board of Directors of the Company has received a written Acquisition Proposal that would, if consummated, constitute a Superior Proposal, (II) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Acquisition Proposal and all other documents (other than immaterial documents) related to the Superior Proposal and (III) advise Parent that the Board of Directors of the Company intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal (such notice, the “Company Notice”), (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall negotiate in good faith with Parent (to the extent requested by Parent), to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition precedent to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal, if such changes offered in writing by Parent (if any) were to be given effect. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” and such three 31) Business Day period shall expire at 5:00 p.m. on the Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional three (3) Business Day notice period be deemed to shorten the initial four (4) Business Day notice period). (Pages 49-50)
Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) <omitted> if a written Acquisition Proposal <omitted> is received by the Company, and the Board of Directors of the Company determines <omitted> that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may <omitted> (y) terminate this Agreement <omitted> ; provided further, that, prior to taking such action described in clauses (x) and/or (y) above, (A) the Company shall give Parent written notice four (4) Business Days in advance <omitted> , (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall negotiate in good faith with Parent (to the extent requested by Parent), to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition precedent to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal, if such changes offered in writing by Parent (if any) were to be given effect. (Pages 49-50)
Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) Notwithstanding anything in this Agreement to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, if a written Acquisition Proposal that did not otherwise result from a breach (other than an unintentional or de minimis breach) of Section 6.1 is received by the Company, and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may, if the Board of Directors of the Company has determined in good faith after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary -40-
duties under applicable Law, (x) effect a Change of Recommendation and/or (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i); provided further, that, prior to taking such action described in clauses (x) and/or (y) above, (A) the Company shall give Parent written notice four (4) Business Days in advance (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4 th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), which notice shall set forth in writing (I) that the Board of Directors of the Company has received a written Acquisition Proposal that would, if consummated, constitute a Superior Proposal, (II) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Acquisition Proposal and all other documents (other than immaterial documents) related to the Superior Proposal and (III) advise Parent that the Board of Directors of the Company intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal (such notice, the “Company Notice”), (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall negotiate in good faith with Parent (to the extent requested by Parent), to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition precedent to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal, if such changes offered in writing by Parent (if any) were to be given effect. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” and such three 31) Business Day period shall expire at 5:00 p.m. on the Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional three (3) Business Day notice period be deemed to shorten the initial four (4) Business Day notice period). (Pages 49-50)
Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) <omitted> if a written Acquisition Proposal <omitted> is received by the Company, and the Board of Directors of the Company determines <omitted> that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may <omitted> (y) terminate this Agreement <omitted> ; provided further, that <omitted> Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” (Pages 49-50) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_120 | 5.4 No Solicitation. <omitted> (e) Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval: <omitted> (ii) if the Company has received a bona fide Acquisition Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless: <omitted> (3) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to Section 5.4(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Acquisition Proposal, the material terms thereof and copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to offer such adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Central time) on the last day of the Proposal Notice Period, in a manner that would constitute a binding agreement between the parties if accepted by the Company (Page 71)
5.4 No Solicitation. <omitted> at any time prior to obtaining the Requisite Stockholder Approval: <omitted> (ii) if the Company has received a bona fide Acquisition Proposal, <omitted> that the Company Board (or a committee thereof) has concluded <omitted> is a Superior Proposal, then the Company Board may <omitted> (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless: <omitted> (3) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance <omitted> to the effect that the Company Board <omitted> has <omitted> received a <omitted> a Superior Proposal; and <omitted> resolved to <omitted> terminate this Agreement pursuant to Section 5.4(e)(ii) <omitted> (ii) prior to effecting such <omitted> termination, the Company <omitted> must have <omitted> negotiated with Parent and its Representatives in good faith <omitted> to offer such adjustments to the terms and conditions of this Agreement (Page 71)
5.4 No Solicitation. <omitted> (e) Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval: <omitted> (e) Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval: <omitted> (ii) if the Company has received a bona fide Acquisition Proposal, whether during the Go-Shop Period or after the No-Shop Period Start Date, that the Company Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal; or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless: <omitted> (3) (i) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Proposal Notice Period”) to the effect that the Company Board (or a committee thereof) has (A) received a bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to Section 5.4(e)(ii) absent any revision to the terms and conditions of this Agreement, which notice will specify the basis for such Company Board Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Acquisition Proposal, the material terms thereof and copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Proposal Notice Period, must have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to offer such adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (2) taken into account any adjustments to the terms and conditions of this Agreement, the Financing Letters and/or the Guaranty proposed by Parent and other information provided by Parent during the Proposal Notice Period, in each case, that are offered in writing by Parent, no later than 11:59 p.m. (Central time) on the last day of the Proposal Notice Period, in a manner that would constitute a binding agreement between the parties if accepted by the Company; provided, however, that in the event of any material modifications to such Acquisition Proposal (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(e)(ii)(3) with respect to such new written notice (it being understood that the “Proposal Notice Period” in respect of such new written notice will be two (2) Business Days); (Page 71)
5.4 No Solicitation. <omitted> at any time prior to obtaining the Requisite Stockholder Approval: <omitted> (ii) if the Company has received a bona fide Acquisition Proposal, <omitted> that the Company Board (or a committee thereof) has concluded <omitted> is a Superior Proposal, then the Company Board may <omitted> (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal substantially concurrently with the termination of this Agreement; provided, however, that the Company Board (or a committee thereof) shall not take any action described in the foregoing clauses (A) or (B) unless: <omitted> the Company has provided prior written notice to Parent at least four (4) Business Days in advance <omitted> to the effect that the Company Board <omitted> has <omitted> received a <omitted> Superior Proposal; <omitted> (it being understood that any change to the financial terms of such proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(e)(ii)(3) with respect to such new written notice (it being understood that the “Proposal Notice Period” in respect of such new written notice will be two (2) Business Days); (Page 71) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_9 | Section 5.2. Acquisition Proposals. <omitted>
Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Expiration Date, (x) if an Intervening Event occurs and the Special Committee determines in good faith, after consultation with its outside legal counsel, that failure to effect a Change of Recommendation in light of such Intervening Event would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law, the Company Board (acting upon the recommendation and direction of the Special Committee) may effect a Change of Recommendation contemplated by clauses (1) or (2) of the definition thereof or (y) if the Company receives, directly or indirectly through one or more of its Representatives, an unsolicited, written, bona fide Acquisition Proposal that the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee concludes in good faith, after consultation with their financial advisor and outside legal counsel, constitutes a Superior Proposal and such Acquisition Proposal did not result from a material breach by the Company of this Section 5.2, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and, in the case of either clause (x) or (y): (i) the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance, that it intends to effect a
Change of Recommendation (a “Notice of Change of Recommendation”) and/or terminate this Agreement pursuant to Section 7.3(a), which notice shall specify in reasonable detail the basis for the Change of Recommendation and/or termination and (A) in the case of a Superior Proposal, the identity of the Person or group of Persons making such Superior Proposal and the material terms thereof, along with a copy of any proposed agreement in respect of such Superior Proposal (or, if there is no such proposed agreement, a written summary of the material terms and conditions of such Superior Proposal); or (B) in the case of an Intervening Event, reasonable detail regarding the Intervening Event;
41
(ii) after providing such notice and prior to effecting such Change of Recommendation and/or terminating this Agreement pursuant to Section 7.3(a), the Company shall have negotiated, and shall have caused its Representatives to be available to negotiate, with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three (3) Business Day period (the “Notice Period”) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a); and (Pages 22-23)
Section 5.2. Acquisition Proposals. <omitted>
(y) if the Company receives <omitted> an <omitted> Acquisition Proposal that the Company Board <omitted> concludes <omitted> constitutes a Superior Proposal <omitted> the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may <omitted> terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and <omitted>
(i) the Company shall have provided <omitted> notice to Parent, at least three (3) Business Days in advance, that it intends to <omitted> terminate this Agreement pursuant to Section 7.3(a), <omitted>
41
(ii) after providing such notice and prior to <omitted> terminating this Agreement pursuant to Section 7.3(a), the Company shall have negotiated, <omitted> with Parent and Merger Sub <omitted> during such three (3) Business Day period (the “Notice Period”) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to <omitted> terminate this Agreement pursuant to Section 7.3(a); and (Pages 22-23)
Section 5.2. Acquisition Proposals. <omitted>
Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Expiration Date, (x) if an Intervening Event occurs and the Special Committee determines in good faith, after consultation with its outside legal counsel, that failure to effect a Change of Recommendation in light of such Intervening Event would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law, the Company Board (acting upon the recommendation and direction of the Special Committee) may effect a Change of Recommendation contemplated by clauses (1) or (2) of the definition thereof or (y) if the Company receives, directly or indirectly through one or more of its Representatives, an unsolicited, written, bona fide Acquisition Proposal that the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee concludes in good faith, after consultation with their financial advisor and outside legal counsel, constitutes a Superior Proposal and such Acquisition Proposal did not result from a material breach by the Company of this Section 5.2, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and, in the case of either clause (x) or (y): (i) the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance, that it intends to effect a
Change of Recommendation (a “Notice of Change of Recommendation”) and/or terminate this Agreement pursuant to Section 7.3(a), which notice shall specify in reasonable detail the basis for the Change of Recommendation and/or termination and (A) in the case of a Superior Proposal, the identity of the Person or group of Persons making such Superior Proposal and the material terms thereof, along with a copy of any proposed agreement in respect of such Superior Proposal (or, if there is no such proposed agreement, a written summary of the material terms and conditions of such Superior Proposal); or (B) in the case of an Intervening Event, reasonable detail regarding the Intervening Event;
41
(ii) after providing such notice and prior to effecting such Change of Recommendation and/or terminating this Agreement pursuant to Section 7.3(a), the Company shall have negotiated, and shall have caused its Representatives to be available to negotiate, with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three (3) Business Day period (the “Notice Period”) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a); and (iii) following the end of the Notice Period, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee shall have determined in good faith, after consultation with their outside legal counsel and, with respect to clause (A) below, their financial advisor, taking into account any changes to this Agreement proposed in writing by Parent in response to the Notice of Change of Recommendation, that (A) the Superior Proposal giving rise to the Notice of Change of Recommendation continues to be a Superior Proposal or (B) in the case of an Intervening Event, the failure of the Company Board and the Special Committee to effect a Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law. Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation and the Company shall be required to comply again with the requirements of clauses (i) - (iii) above; provided, however, that subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation. (Pages 22-23)
Section 5.2. Acquisition Proposals. <omitted>
(y) if the Company receives <omitted> an <omitted> Acquisition Proposal that the Company Board <omitted> concludes <omitted> constitutes a Superior Proposal <omitted> the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may <omitted> terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and <omitted>
(i) the Company shall have provided <omitted> notice to Parent, at least three (3) Business Days in advance, that it intends to <omitted> terminate this Agreement pursuant to Section 7.3(a), <omitted>
<omitted> Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice <omitted> provided, however, that subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation. (Pages 22-23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.03. No Solicitation; Other Offers.
<omitted>
(e)
<omitted>
provided that the Board of Directors of the Company shall not make an Adverse Recommendation Change (or terminate this Agreement pursuant to Section 10.01(d)(i)), unless (i) the Company promptly notifies Parent, in writing at least five Business Days before taking that action, of its intention to do so, attaching (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Superior Proposal, or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, (ii) during such five Business Day period, if requested by Parent, the Company and its Representatives shall have discussed and negotiated in good faith (in each case to the extent Parent desires to negotiate) with Parent and its Representatives regarding any proposal by Parent to amend the terms of this Agreement in response to such potential Adverse Recommendation Change and (iii) the Board of Directors of the Company has determined in good faith, after consulting with its outside legal counsel and the Company’s financial advisor, that Parent has not made, within such five Business Day period, an offer that (A) in the case of any Adverse Recommendation Change to be made following receipt of a Superior Proposal, is at least as favorable to the shareholders of the Company as such Superior Proposal <omitted> or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, obviates the need for such Adverse Recommendation Change. (Page 49) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_92 | Section 7.3 No Solicitation by the Company. <omitted>(f) Prior to making any Company Adverse Recommendation Change or entering into any Alternative Company Acquisition Agreement, (i) the Company Board shall provide Parent at least four (4) Business Days’ prior written notice of its intention to take such action, which notice shall specify, in reasonable detail, the reasons therefor and, in the case of a Company Acquisition Proposal, the material terms and conditions of such proposal, and attaching a copy of any proposed agreements for the Superior Company Proposal, if applicable, it being understood that the delivery of such notice shall not itself constitute a Company Adverse Recommendation Change; (ii) during the four (4) Business Days following such written notice, the Company Board and its Representatives shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Company Proposal or Intervening Event, as applicable, as would enable the Company Board to maintain the Company Board Recommendation and not make a Company Adverse Recommendation Change or, in the case of a Superior Company Proposal, terminate this Agreement; and (iii) at the end of the four (4) Business Day period described in the foregoing clause (ii), the Company Board shall have concluded in good faith, after consultation with the Company’s outside legal counsel and outside financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed in writing by Parent), that, as applicable (A) the Company Acquisition Proposal continues to be a Superior Company Proposal or (B) the Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Laws. (Page 69)
Section 7.3 No Solicitation by the Company.<omitted>(f) Prior to making any Company Adverse Recommendation Change or entering into any Alternative Company Acquisition Agreement, (i) the Company Board shall provide Parent at least four (4) Business Days’ prior written notice of its intention to take such action, <omitted> (ii) during the four (4) Business Days following such written notice, the Company Board and its Representatives shall negotiate in good faith with Parent <omitted> regarding any revisions to the terms of the transactions <omitted> proposed by Parent in response to such Superior Company Proposal or Intervening Event, as applicable, as would enable the Company Board to maintain the Company Board Recommendation and not make a Company Adverse Recommendation Change or, in the case of a Superior Company Proposal, terminate this Agreement (Page 69)
(D) Section 7.3(f) of the Agreement is hereby amended and restated in its entirety to read as follows:
“Prior to making any Company Adverse Recommendation Change or entering into any Alternative Company Acquisition Agreement, (i) the Company Board shall provide Parent at least five (5) Business Days’ prior written notice of its intention to take such action, which notice shall specify, in reasonable detail, the reasons therefor and, in the case of a Company Acquisition Proposal, the material terms and conditions of such proposal, and attaching a copy of any proposed agreements for the Superior Company Proposal, if applicable, it being understood that the delivery of such notice shall not itself constitute a Company Adverse Recommendation Change; (ii) during the five (5) Business Days following such written notice, the Company Board and its Representatives shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Company Proposal or Intervening Event, as applicable, as would enable the Company Board to maintain the Company Board Recommendation and not make a Company Adverse Recommendation Change or, in the case of a Superior Company Proposal, terminate this Agreement; and (iii) at the end of the five (5) Business Day period described in the foregoing clause (ii), the Company Board shall have concluded in good faith, after consultation with the Company’s outside legal counsel and outside financial advisors (and taking into account any adjustment or modification 2
of the terms of this Agreement proposed in writing by Parent), that, as applicable (A) the Company Acquisition Proposal continues to be a Superior Company Proposal or (B) the Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Laws.” (Pages 2-3)
(D) Section 7.3(f) of the Agreement is hereby amended and restated in its entirety to read as follows:
“<omitted>(i) the Company Board shall provide Parent at least five (5) Business Days’ prior written notice of its intention to take such action<omitted>, the material terms and conditions of such proposal, and attaching a copy of any proposed agreements for the Superior Company Proposal<omitted>; (ii) during the five (5) Business Days following such written notice, the Company Board and its Representatives shall negotiate in good faith with Parent <omitted>as would enable the Company Board to <omitted>, in the case of a Superior Company Proposal, terminate this Agreement (Pages 2-3) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may <omitted> (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), <omitted> provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of <omitted> Recommendation Change”) <omitted> advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; (Pages 38-39) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_87 | Section 5.10 Acquisition Proposals. <omitted>
(b) <omitted> provided that, in the event the Company receives an unsolicited bona fide Acquisition Proposal, from a Person other than Nicolet, after the execution of this Agreement and prior to the receipt of the Company Shareholder Approval, and the Company Board concludes in good faith, after consultation with its financial advisor and outside counsel, that such Acquisition Proposal constitutes a Superior Proposal or could reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions could be reasonably likely to result in a violation of the directors’ fiduciary duties under applicable law, the Company may: (i) furnish information with respect to it to such Person making such Acquisition Proposal pursuant to a customary confidentiality agreement (subject to the requirement that any such information not previously provided to Nicolet shall be promptly furnished to Nicolet); (ii) participate in discussions or negotiations regarding such Acquisition Proposal; and (iii) terminate this Agreement in order to concurrently enter into an agreement with respect to such Acquisition Proposal; provided, however, that the Company may not terminate this Agreement pursuant to this Section 5.10 unless and until (x) five (5) Business Days have elapsed following the delivery to Nicolet of a written notice of such determination by the Company Board and, during such five (5) Business-Day period, the parties cooperate with one another with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected, and (y) at the end of such five (5) Business-Day period, the Company Board continues, in good faith and after consultation with outside legal counsel and financial advisors, to believe that a Superior Proposal continues to exist. (Page 41)
Section 5.10 Acquisition Proposals. <omitted>
(b) <omitted> provided that, in the event the Company receives an <omitted> Acquisition Proposal <omitted> and the Company Board concludes <omitted> that such Acquisition Proposal constitutes a Superior Proposal <omitted> and, <omitted> that failure to take such actions could <omitted> result in a violation of the directors’ fiduciary duties <omitted>, the Company may: <omitted> (iii) terminate this Agreement in order to concurrently enter into an agreement with respect to such Acquisition Proposal; provided, however, that the Company may not terminate this Agreement <omitted> until (x) five (5) Business Days have elapsed <omitted> and, during such five (5) Business-Day period, the parties cooperate with one another with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected, and (y) at the end of such five (5) Business-Day period, the Company Board continues, <omitted> to believe that a Superior Proposal continues to exist. (Page 41) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. Further, the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing at least five Business Days before taking that action, of its intention to do so, attaching (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Superior Proposal, or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, and (ii) Parent does not make, within five Business Days after its receipt of that written notification, a binding offer that (A) in the case of any Adverse Recommendation Change to be made following receipt of a Superior Proposal, is determined by the Company Board to be at least as favorable to the stockholders of the Company as such Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company and a new period under this Section 6.03(d), provided that such period for any amendments shall be three Business Days instead of five Business Days) or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, obviates, in the reasonable judgment of the Company Board, the need for such Adverse Recommendation Change. (Page 58)
Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. <omitted> the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing at least five Business Days before taking that action, of its intention to do so, <omitted> (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, <omitted> or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, (Page 58)
Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. Further, the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing at least five Business Days before taking that action, of its intention to do so, attaching (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Superior Proposal, or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, and (ii) Parent does not make, within five Business Days after its receipt of that written notification, a binding offer that (A) in the case of any Adverse Recommendation Change to be made following receipt of a Superior Proposal, is determined by the Company Board to be at least as favorable to the stockholders of the Company as such Superior Proposal <omited> or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, obviates, in the reasonable judgment of the Company Board, the need for such Adverse Recommendation Change. (Page 58)
Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. <omitted> the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing <omitted> (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, <omitted> ( (Page 58) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.3 Acquisition Proposals.
<omitted>
(e) Change of Recommendation / Superior Proposal Termination. Notwith-standing anything to the contrary in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, (x) the Company Board may make a Change of Recommendation (1) if the Company receives a bona fide unsolicited Acquisition Proposal following the Agreement Date that did not result from a violation of Section 5.3 and the Company Board determines in good faith (after consultation with the Company’s outside legal and financial advisors) based on the information then available that such Acquisition Proposal constitutes a Superior Proposal or (2) in response to a Company Intervening Event, in either case of (1) or (2), only if the Company Board determines in good faith that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (y) if the Company Board is permitted to make a Change of Recommendation pursuant to clause (x)(1), the Company may also terminate this Agreement pursuant to Section 7.1 to enter into an Alternative Acquisition Agreement with respect to the applicable Superior Proposal; provided, however, that neither the Company Board or the Company shall take any of the foregoing actions unless:
(i) the Company shall have complied in all material respects with its obligations under this Section 5.3(e);
(ii) the Company shall have provided prior written notice (a “Determination Notice”) to Parent at least ninety-six (96) hours in advance (the “Notice Period”) to the effect that the Company Board intends to take such action and specifying in writing, in reasonable detail the circumstances giving rise to such proposed action, including, in the case such action is proposed to be taken in connection with an Acquisition Proposal, the information specified by Section 5.3(c) with respect to such Acquisition Proposal (it being understood and agreed that the delivery of a Determination Notice shall not, in and of itself, be deemed a Change of Recommendation);
40
(iii) the Company shall have, during the Notice Period negotiated with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement such that (A) the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law and (B) with respect to any such action to be taken in connection with an Acquisition Proposal, such Acquisition Proposal ceases to constitute a Superior Proposal;
(iv) at or following the end of such Notice Period, the Company Board shall have determined in good faith based on the information then available that (A) failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under applicable Law and (B) with respect to any such action to be taken in connection with an Acquisition Proposal, such Acquisition Proposal continues to constitute a Superior Proposal, in each case taking into account any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination pursuant to clause (iii) above; and
(v) in the event of a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, the Company shall have validly terminated this Agreement in accordance with Section 7.1 and paid the Company Termination Fee in accordance with Section 7.4. (Pages 44-45) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | (None entered)
(None entered) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.04. No Solicitation; Other Offers. <omitted> (d) Last Look. Neither the Board of Directors nor the Company shall take any of the actions referred to in Section 6.04(b)(ii) unless and until: (i) the Company shall have notified Parent, in writing and at least five Business Days prior to taking such action, of its intention to take such action, specifying, in reasonable detail, the reasons for the Adverse Recommendation Change, and attaching a copy of any proposed agreements for the Superior Proposal or a reasonably detailed description of the Intervening Event, as applicable (such written notice, a “Notice of Superior Proposal”), (ii) Parent shall not have made, within five Business Days after receipt of such written notification (the “Notice Period”), an offer that the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, obviates the need to effect the Adverse Recommendation Change, or is at least as favorable from a financial point of view to the Company’s stockholders, taking into consideration the identity of the counterparty, the expected timing and likelihood of consummation and such other factors determined by the Board of Directors to be relevant, in the case of any such Superior Proposal, as applicable, (iii) during the Notice Period, the Company and its Representatives shall have negotiated with Parent and its Representatives in good faith (to the extent Parent so desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that either the failure to make an Adverse Recommendation Change in response to such Intervening Event would no longer be reasonably expected to be inconsistent with the fiduciary duties of the Board of Directors under Applicable Law or such Acquisition Proposal would cease to constitute a Superior Proposal, as appropriate, and (iv) in determining whether to make such Adverse Recommendation Change in response to such Intervening Event or Superior Proposal or terminate this Agreement in connection with such Superior Proposal, as applicable, the Board of Directors shall have taken into account any changes to the terms of this Agreement timely proposed by Parent in response to any Notice of Superior Proposal during the Notice Period (as may be extended); provided, further, that any material revision to any Acquisition Proposal shall require a new written notice to be provided in accordance with clause (i) and the Company shall be required to comply again with the requirements of this Section 6.04(d); <omited> . (Page 25) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 4.5 Meeting of the Company’s Stockholders; Company Change in Recommendation. <omitted> (c) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to obtaining the Required Company Stockholder Vote, the Company Board may make a Company Change in Recommendation related to a Company Acquisition Proposal and authorize the Company to terminate this Agreement if and only if (x) the Company receives from a third party a bona fide written Company Acquisition Proposal after the date of this Agreement that has not been withdrawn and did not result from a breach of Section 4.2 and (y) prior to making such Company Change in Recommendation and/or authorizing the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Company Acquisition Proposal: <omitted> (ii) the Company delivers to Parent a written notice (the “Company Superior Proposal Notice”) no less than four (4) Business Days in advance stating that the Company Board intends to make a Company Change in Recommendation and/or terminate this Agreement to enter into a definitive agreement with respect to such Company Acquisition Proposal, which notice shall include the identity of the Person making such Company Acquisition Proposal and a copy of such proposal and a draft of the definitive agreement to be entered into in connection therewith (or, if not in writing, the material terms and conditions thereof) (Page 64)
4.5 Meeting of the Company’s Stockholders; Company Change in Recommendation. <omitted> the Company Board may make a Company Change in Recommendation related to a Company Acquisition Proposal and authorize the Company to terminate this Agreement if and only if <omitted> (ii) the Company delivers to Parent a written notice <omitted> no less than four (4) Business Days in advance stating that the Company Board intends to make a Company Change in Recommendation and/or terminate this Agreement to enter into a definitive agreement with respect to such Company Acquisition Proposal (Page 64)
4.5 Meeting of the Company’s Stockholders; Company Change in Recommendation.<omitted> (c) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to obtaining the Required Company Stockholder Vote, theCompany Board may make a Company Change in Recommendation related to a Company Acquisition Proposal and authorize the Company to terminate thisAgreement if and only if (x) the Company receives from a third party a bona fide written Company Acquisition Proposal after the date of this Agreement that has not been withdrawn and did not result from a breach of Section 4.2 and (y) prior to making such Company Change in Recommendation and/or authorizing theCompany to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Company Acquisition Proposal: <omitted> (iii) (A) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Company Superior Proposal Notice, if requested by Parent, the Company engages in good faith negotiations with Parent regarding a possible amendment of this Agreement so that the Company Acquisition Proposal that is the subject of the Company Superior Proposal Notice ceases to be a Company Superior Proposal; and (B) after the expiration of the negotiation period described in clause (A) above, the Company Board determines in good faith, after consultation with its outside legal counsel and its financial advisor, and after taking into account any amendments to this Agreement that Parent and Acquisition Sub have committed in writing to make as a result of the negotiations contemplated by clause (A) above, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal; <omitted> (2) the period remaining under the original four (4) Business Day notice period of clause (A) above), during which time the Company shall be required to comply with the requirements of Section 4.5(c)(iii) anew with respect to such additional notice <omitted>) (Page 65)
4.5 Meeting of the Company’s Stockholders; Company Change in Recommendation. <omitted> prior to making such Company Change in Recommendation and/or authorizing the Company to terminate this Agreement to concurrently enter into a definitive agreement with respect to such Company Acquisition Proposal: <omitted> the Company shall, in each case, be required to deliver to Parent an additional notice consistent with that described in clause (ii) above and a new negotiation period under clause (A) above shall commence (except that the original four (4) Business Day notice period referred to in clause (A) above shall instead be equal to the longer of (1) three (3) Business Days and (2) the period remaining under the original four (4) Business Day notice period of clause (A) above), during which time the Company shall be required to comply with the requirements of Section 4.5(c)(iii) anew with respect to such additional notice (but substituting the time periods therein with the foregoing three (3) Business Day period) (Page 65) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | (c) Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisor and outside counsel, it determines that the failure to take such action would be inconsistent with the fiduciary duties of directors under Indiana Law, (x) make an Adverse Recommendation Change in response to a Change in Circumstance, (y) make an Adverse Recommendation Change in response to a Superior Proposal or (z) cause or permit the Company to terminate this Agreement in order to enter into a binding written definitive agreement to effect a Superior Proposal, if and only if:
(i) the Company shall have given Parent notice at least four (4) Business Days prior to making any such Adverse Recommendation Change or causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, which notice shall include (A) the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board of Directors, the identity of the Person making the Superior Proposal and copies of proposed definitive documentation with respect to the Superior Proposal <omitted> (2) in determining whether to make an Adverse Recommendation Change or to cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to the financial and other terms of this Agreement proposed by Parent in writing to the Company (and not revoked) in response to any such notice or otherwise within the periods described above) or (B) a reasonably detailed description of the material event or development constituting such Change in Circumstance;
(ii) the Company has and has caused its Subsidiaries and its and their respective Representatives to make themselves reasonably available to negotiate with Parent and its Representatives during the period referred to in clause (i) above to the extent requested in writing by Parent in order to permit Parent to propose one or more amendments to this Agreement that would result in such Takeover Proposal ceasing to constitute a Superior Proposal or such other matter no longer constituting a Change in Circumstance;
(iii) after considering any proposed binding offers to amend this Agreement committed to in writing by Parent (and not revoked) during the period referred to in clause (i) above, if any, the Company Board of Directors shall have determined in good faith, after consultation with its financial advisor and outside counsel, that the failure to make the Adverse Recommendation Change in response to such Superior Proposal or Change in Circumstance or cause or permit the Company to terminate this Agreement in response to such Superior Proposal would be inconsistent with the fiduciary duties of directors under Indiana Law. (Page 49)
(i) the Company shall have given Parent notice at least four (4) Business Days prior to <omitted> causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, <omitted> (it being understood and agreed that <omitted> in determining whether to <omitted> cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to <omitted> this Agreement proposed by Parent
(c)Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisor and outside counsel, it determines that the failure to take such action would be inconsistent with the fiduciary duties of directors under Indiana Law, (x) make an Adverse Recommendation Change in response to a Change in Circumstance, (y) make an Adverse Recommendation Change in response to a Superior Proposal or (z) cause or permit the Company to terminate this Agreement in order to enter into a binding written definitive agreement to effect a Superior Proposal, if and only if:
(i) the Company shall have given Parent notice at least four (4) Business Days prior to making any such Adverse Recommendation Change or causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, which notice shall include (A) the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board of Directors, the identity of the Person making the Superior Proposal and copies of proposed definitive documentation with respect to the Superior Proposal (it being understood and agreed that <omitted> (2) in determining whether to make an Adverse Recommendation Change or to cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to the financial and other terms of this Agreement proposed by Parent in writing to the Company (and not revoked) in response to any such notice or otherwise within the periods described above) or (B) a reasonably detailed description of the material event or development constituting such Change in Circumstance; (Page 49)
(i) the Company shall have given Parent notice at least four (4) Business Days prior to <omitted> causing or permitting the Company to terminate this Agreement pursuant to clause (y) above, <omitted> (2) in determining whether to <omitted> cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to <omitted> this Agreement proposed by Parent | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
main | contract_6 | provided, however, that AB may not terminate this Agreement pursuant to this Section 7.4.6 unless <omitted> (c) it has provided GBCI at least 10 days’ prior written notice advising GBCI that the board of directors of AB is prepared to accept a Superior Proposal (the “Superior Proposal Notice Period”) and has given GBCI, if it so elects, an opportunity to amend the terms of this Agreement during the Superior Proposal Notice Period (and negotiated with GBCI in good faith with respect to such terms during the Superior Proposal Notice Period) in such a manner as would enable AB’s board of directors to proceed with the Merger without violating their fiduciary duties (Page 51)
provided, however, that AB may not terminate this Agreement pursuant to this Section 7.4.6 unless <omitted> (c) it has provided GBCI at least 10 days’ prior written notice advising GBCI that the board of directors of AB is prepared to accept a Superior Proposal (the “Superior Proposal Notice Period”) and has given GBCI, if it so elects, an opportunity to amend the terms of this Agreement (Page 51) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 6.1 Company Board Recommendation. <omitted> (b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to Offer Acceptance Time: (i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal did not arise out of a material breach of Section 5.4) from any Person that has not been withdrawn and, after consultation with outside legal counsel and independent financial advisors, the Company Board shall have determined, in good faith, that such 51
Acquisition Proposal is a Superior Proposal, (x) the Company Board may make a Company Adverse Change Recommendation, or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Proposal, in each case if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, that the failure to do so is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws; (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 8.1(f) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C) (1) the Company shall have provided to Parent all information contemplated to be provided in accordance with Section 5.4(d), (2) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that such Acquisition Proposal would cease to constitute a Superior Proposal, and shall have negotiated in good faith with Parent (to the extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, (3) after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and independent financial advisors, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Proposal and that the failure to make the Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 8.1(f) is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws, and (4) if the Company intends to terminate this Agreement to enter into a Specified Agreement, the Company shall have complied with Section 8.1(f). Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f), in and of itself, shall not be considered a Company Adverse Change Recommendation and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. For the avoidance of doubt, the provisions of this Section 6.1(b)(i) shall also apply to any material amendment (which shall include any change to the financial terms, including the form, amount and timing of payment of consideration) to any Acquisition Proposal and require a new Determination Notice, except that the references to four (4) Business Days shall be deemed to be three (3) Business Days; and (ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to an Intervening Event, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, that the failure to do so is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws; (B) the Company shall have given Parent a Determination Notice at least four (4) Business Days prior to making any such Company Adverse Change Recommendation; and (C) (1) the Company shall have specified the Intervening Event in reasonable detail, (2) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that such Intervening Event would no longer necessitate a Company Adverse Change Recommendation, and shall have made its Representatives reasonably available to negotiate in good faith with Parent (to the extent Parent desires to do so) with respect to such proposed revisions or other proposal, if any, and (3) after considering the results of such negotiations and giving effect to the proposals made by 52
Parent, if any, after consultation with outside legal counsel, the Company Board shall have determined, in good faith, that the failure to make the Company Adverse Change Recommendation in response to such Intervening Event is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Laws. (Pages 56-58) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 7.1 Shareholder Approvals. <omitted> (c) <omitted>
Notwithstanding the foregoing, prior to the receipt of the Requisite SB Shareholder Approval, SB’s board of directors may make an Adverse Recommendation Change <omitted> (C) SB’s board of directors provides written notice (a “Notice of Recommendation Change”) to Buyer of its receipt of the Superior Proposal and its intent to announce an Adverse Recommendation Change on the third business day following delivery of such notice, which notice shall specify the material terms and conditions of the Superior Proposal (and include a copy thereof with all accompanying documentation, if in writing) and identify the Person or Group making such Superior Proposal; (D) after providing such Notice of Recommendation Change, SB shall negotiate in good faith with Buyer (if requested by Buyer) and provide Buyer reasonable opportunity during the subsequent three business day period to make such adjustments in the terms and conditions of this Agreement as would enable SB’s board of directors to proceed without an Adverse Recommendation Change (provided, however, that Buyer shall not be required to propose any such adjustments); and (E) SB’s board of directors, following such three business day period, again determines in good faith, after consultation with outside counsel, that such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be inconsistent with their fiduciary duties to SB and its shareholders under applicable Law. <omitted>
9.1 Termination. Notwithstanding any other provision of this Agreement, and notwithstanding the approval of this Agreement by the shareholders of SB, this Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time: <omitted> (f) By SB, prior to the Requisite SB Shareholder Approval (and provided that SB has complied in all material respects with Section 7.1 (including the provisions of Section 7.1(b) regarding the requirements for making an Adverse Recommendation Change)) and Section 7.3, in order to enter into a Superior Proposal. (Page 21) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.9 Acquisition Proposals.
<omitted>
(b)
<omitted>
provided, however, that the Company may not terminate this Agreement pursuant to this Section 5.9 unless and until (x) five (5) Business Days have elapsed following the delivery to Nicolet of a written notice of such determination by the Company Board and, during such five (5) Business-Day period, the parties cooperate with one another with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected, and (y) at the end of such five (5) Business-Day period, the Company Board continues, in good faith and after consultation with outside legal counsel and financial advisors, to believe that a Superior Proposal continues to exist. (Page 44) | null | 1 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_5 | Section 6.02 No Solicitation by the Company. <omitted> (d) Anything in this Agreement to the contrary notwithstanding, prior to the Company Approval Time, in response to a Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes a Company Superior Proposal, the Board of Directors of the Company may, subject to compliance with this Section 6.02(d), (i) make a Company Adverse Recommendation Change and/or (ii) terminate this Agreement in accordance with Section 10.01(d)(iii); provided, that (A) the Company shall first notify Parent in writing at least four Business Days before taking such action that the Company intends to take such action, which notice shall include an unredacted copy of such proposal and a copy of any financing commitments (in the form provided to the Company) relating thereto (and, to the extent not in writing, the material terms and conditions thereof and the identity of the person making any such proposal), (B) the Company shall make its Representatives reasonably available to negotiate with Parent and its Representatives during such four Business Day notice period, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal, (C) upon the end of such notice period, the Board of Directors of the Company shall have considered in good faith any revisions to the terms of this Agreement committed to in writing by Parent, and shall have determined that the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal if the revisions committed to in writing by Parent were to be given effect and (D) in the event of any change, from time to time, to any of the financial terms or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) of this proviso and a new notice period under clause (A) of this proviso shall commence each time, except each such notice period shall be three Business Days (instead of four Business Days), during which time the Company shall be required to comply with the requirements of this Section 6.02(d) anew with respect to each such additional notice, including clauses (A) through (D) above of this proviso. (Page 76) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_5 | Section 6.02 No Solicitation by the Company. <omitted> (d) <omitted> the Board of Directors of the Company may <omitted> (ii) terminate this Agreement in accordance with Section 10.01(d)(iii); provided, that (A) the Company shall first notify Parent in writing at least four Business Days before taking such action that the Company intends to take such action, <omitted> (D) in the event of any change, from time to time, to any of the financial terms or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) of this proviso and a new notice period under clause (A) of this proviso shall commence each time, except each such notice period shall be three Business Days (instead of four Business Days), during which time the Company shall be required to comply with the requirements of this Section 6.02(d) anew with respect to each such additional notice, including clauses (A) through (D) above of this proviso. (Page 76) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_8 | 6.3 No Solicitation by the Company. <omitted> (iii) prior to the receipt of the Company Stockholder Approval, in response to a bona fide written Company Competing Proposal from a third party that was not solicited at any time following the execution of this Agreement and did not arise from a material breach of the obligations set forth in this Section 6.3, if the Company Board (or any committee thereof) so chooses, cause the Company to effect a Company Change of Recommendation or terminate this Agreement pursuant to Section 8.1(d)(i), if prior to taking such action (A) the Company Board (or any committee thereof) determines in good faith after consultation with its financial advisors and outside legal counsel that such Company Competing Proposal is a Company Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger proposed by Parent in response to such Company Competing Proposal), and (B) the Company shall have given notice to Parent that the Company has received such proposal in accordance with Section 6.3(c), specifying the material terms and conditions of such proposal, and, that the Company intends to take such action, and either (1) Parent shall not have proposed revisions to the terms and conditions of this Agreement prior to the earlier to occur of the scheduled time for the Company Stockholders Meeting and the third Business Day after the date on which such notice is given to Parent, or (2) if Parent within the period described in the foregoing clause (1) shall have proposed revisions to the terms and conditions of this Agreement, the Company Board (or any committee thereof), after consultation with its financial advisors and outside legal counsel, shall have determined in good faith that the Company Competing Proposal remains a Company Superior Proposal with respect to Parent’s revised proposal; provided, however, that each time material modifications to the financial terms of a Company Competing Proposal determined to be a Company Superior Proposal are made, the time period set forth in this clause (B) prior to which the Company may effect a Company Change of Recommendation or terminate this Agreement shall be extended for two Business Days after notification of
such change to Parent; and (Pages 25-26) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_8 | 6.3 No Solicitation by the Company. <omitted> (iii) <omitted> in response to a <omitted> Company Competing Proposal <omitted> , if the Company Board <omitrted> so chooses, cause the Company to effect a Company Change of Recommendation or terminate this Agreement pursuant to Section 8.1(d)(i), if prior to taking such action <omitted> (B) the Company shall have given notice to Parent that the Company has received such proposal <omitted> , and, that the Company intends to take such action <omitted> ; provided, however, that each time material modifications to the financial terms of a Company Competing Proposal determined to be a Company Superior Proposal are made, the time period set forth in this clause (B) prior to which the Company may effect a Company Change of Recommendation or terminate this Agreement shall be extended for two Business Days after notification of such change to Parent (Pages 25-26) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_9 | Section 5.2. Acquisition Proposals. <omitted>
Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Expiration Date, (x) if an Intervening Event occurs and the Special Committee determines in good faith, after consultation with its outside legal counsel, that failure to effect a Change of Recommendation in light of such Intervening Event would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law, the Company Board (acting upon the recommendation and direction of the Special Committee) may effect a Change of Recommendation contemplated by clauses (1) or (2) of the definition thereof or (y) if the Company receives, directly or indirectly through one or more of its Representatives, an unsolicited, written, bona fide Acquisition Proposal that the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee concludes in good faith, after consultation with their financial advisor and outside legal counsel, constitutes a Superior Proposal and such Acquisition Proposal did not result from a material breach by the Company of this Section 5.2, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and, in the case of either clause (x) or (y): (i) the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance, that it intends to effect a
Change of Recommendation (a “Notice of Change of Recommendation”) and/or terminate this Agreement pursuant to Section 7.3(a), which notice shall specify in reasonable detail the basis for the Change of Recommendation and/or termination and (A) in the case of a Superior Proposal, the identity of the Person or group of Persons making such Superior Proposal and the material terms thereof, along with a copy of any proposed agreement in respect of such Superior Proposal (or, if there is no such proposed agreement, a written summary of the material terms and conditions of such Superior Proposal); or (B) in the case of an Intervening Event, reasonable detail regarding the Intervening Event;
41
(ii) after providing such notice and prior to effecting such Change of Recommendation and/or terminating this Agreement pursuant to Section 7.3(a), the Company shall have negotiated, and shall have caused its Representatives to be available to negotiate, with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three (3) Business Day period (the “Notice Period”) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a); and (iii) following the end of the Notice Period, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee shall have determined in good faith, after consultation with their outside legal counsel and, with respect to clause (A) below, their financial advisor, taking into account any changes to this Agreement proposed in writing by Parent in response to the Notice of Change of Recommendation, that (A) the Superior Proposal giving rise to the Notice of Change of Recommendation continues to be a Superior Proposal or (B) in the case of an Intervening Event, the failure of the Company Board and the Special Committee to effect a Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law. Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation and the Company shall be required to comply again with the requirements of clauses (i) - (iii) above; provided, however, that subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation. (Pages 22-23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_9 | Section 5.2. Acquisition Proposals. <omitted>
(y) if the Company receives <omitted> an <omitted> Acquisition Proposal that the Company Board <omitted> concludes <omitted> constitutes a Superior Proposal <omitted> the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may <omitted> terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and <omitted>
(i) the Company shall have provided <omitted> notice to Parent, at least three (3) Business Days in advance, that it intends to <omitted> terminate this Agreement pursuant to Section 7.3(a), <omitted>
<omitted> Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice <omitted> provided, however, that subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation. (Pages 22-23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_13 | 6.2 Solicitation of Transactions. <omitted> (c) <omitted> (iii) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the time the Requisite Company Vote is obtained, the Company Board may in response to an Acquisition Proposal that the Company Board determines in good faith (after consultation with outside legal counsel and its financial advisor) constitutes a Superior Proposal and that was made after the date of this Agreement and did not result from a breach of Section 6.2(b)(i), (A) make a Change in Recommendation (other than the type in clause (F) of Change in Recommendation) if the Company Board has concluded in good faith (after consultation with its outside legal counsel) that, in light of the receipt of such Superior Proposal, that failure to make such Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, or (B) cause the Company to terminate this Agreement pursuant to Section 8.1(f) and concurrently with such termination enter into an Acquisition Agreement if the Company Board has concluded in good faith, after consultation with its outside legal counsel, that, in light of the receipt of such Superior Proposal, that failure to so terminate this Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company Board may not effect a Change in Recommendation or terminate this Agreement unless the Company shall have provided prior written notice to Parent at least five (5) business days in advance of its intention to take such action (a “Notice of Designated Superior Proposal”), and prior to effecting such Change in Recommendation or termination of this Agreement, the Company shall, and shall cause its Representatives to, during such five (5) business day period, negotiate with Parent in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Change in Recommendation is no longer necessary and such Superior Proposal no longer constitutes a Superior Proposal (and in the event of any material change to any of the terms (including the form, amount and timing of payment of consideration) of such Superior Proposal the Company, the Company shall, in each case, deliver to Parent an additional notice consistent with that described in this proviso and a renewed negotiation period under this proviso shall commence (except that the five (5) business day period shall instead be equal to three (3) business days; provided that if such additional notice is delivered during the initial five (5) business day negotiation period, the initial negotiation period shall not be reduced by such notice)); provided further, that the Company shall not be entitled to terminate this Agreement pursuant to the foregoing clause (B), and any purported termination pursuant to the foregoing clause (B) shall be void and of no force or effect, unless concurrently with such termination the Company pays by wire transfer of immediately available funds the Company Termination Fee in accordance with Section 8.1(f). (Page 31) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_13 | 6.2 Solicitation of Transactions. <omitted>
(iii) <omitted> the Company Board may <omitted> terminate this Agreement pursuant to Section 8.1(f) <omitted> ; provided, however, that the Company Board may not <omitted> terminate this Agreement unless the Company shall have provided <omitted> notice <omitted> (and in the event of any material change to any of the terms (including the form, amount and timing of payment of consideration) of such Superior Proposal the Company, the Company shall, in each case, deliver to Parent an additional notice <omitted> and a renewed negotiation period under this proviso shall commence (except that the five (5) business day period shall instead be equal to three (3) business days <omitted> )) (Page 31) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_19 | Section 5.3 Solicitation by the Company. <omitted> (d) Notwithstanding anything in this Section 5.3 or Section 5.4 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may (i) make a Change of Recommendation in response to an Intervening Event, or (ii) following receipt of a bona fide written Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Superior Proposal, (A) make a Change of Recommendation or (B) if such Competing Proposal did not result from a breach of Section 5.3(a), terminate this Agreement pursuant to Section 8.1(g) in order to enter into a definitive agreement providing for such Superior Proposal, in each case with respect to clauses (i) and (ii), if and only if the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e).
58
(e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), (A) the Company shall provide Parent with four (4) business days’ prior written notice advising Parent it intends to effect a Change of Recommendation, which notice shall specify, in reasonable detail, the reasons therefor (including the material facts and circumstances related to the applicable Intervening Event), (B) if requested by Parent, the Company shall make its Representatives reasonably available to negotiate with Parent and its Representatives during such four (4) business day period following such notice regarding any proposal by Parent to amend the terms of this Agreement in response to such Intervening Event, and (C) and during such four (4) business day period, the Company shall consider in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the basis for a Change of Recommendation, or (ii) under Section 5.3(d)(ii), (A) the Company shall provide Parent with four (4) business days’ prior written notice, which notice shall include an unredacted copy of such proposal and a copy of any financing commitments (in the form provided to the Company) relating thereto (and, to the extent not in writing, the material terms and conditions thereof and the identity of the Person making any such proposal), (B) the Company shall make its Representatives reasonably available to negotiate with Parent and its Representatives during such four (4) business day notice period, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, (C) upon the end of such notice period, the Company Board of Directors shall have considered in good faith any revisions to the terms of this Agreement proposed by Parent, and shall have determined that the Superior Proposal nevertheless continues to constitute a Superior Proposal and (D) in the event of any change, from time to time, to any of the financial terms or any material change to any of the other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (ii)(A) and a new notice period under clause (ii)(A) during which time the Company shall be required to comply with the requirements of this Section 5.3(e)(ii) anew with respect to each such additional notice, including clauses (ii)(A) through (ii)(D) above, except that such new notice period shall be two (2) business days. (Page 27) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_19 | the Company Board of Directors may <omitted> terminate this Agreement pursuant to Section 8.1(g) in order to enter into a definitive agreement providing for such Superior Proposal, if and only if <omitted> the Company complies with Section 5.3(e).
<omitted> Prior to the Company taking any action permitted <omitted> (ii) under Section 5.3(d)(ii), <omitted> (D) in the event of any change, from time to time, to any of the financial terms or any material change to any of the other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (ii)(A) and a new notice period under clause (ii)(A) during which time the Company shall be required to comply with the requirements of this Section 5.3(e)(ii) anew with respect to each such additional notice, including clauses (ii)(A) through (ii)(D) above, except that such new notice period shall be two (2) business days. (Page 27) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_23 | Section 6.03 No Solicitation by the Company. <omitted> (f) Notwithstanding anything in this Agreement to the contrary, prior to the Company Approval Time, in response to a bona fide Company Acquisition Proposal that has not resulted from a violation of this Section 6.03 that the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Company Superior Proposal, the Board of Directors of the Company may, subject to compliance with this Section 6.03(f), (i) make a Company Adverse Recommendation Change or (ii) terminate this Agreement in accordance with Section 9.01(d) (iii); provided, that (A) the Company shall first notify Parent in writing at least five Business Days before taking such action of its intention to take such action, which notice shall include an unredacted copy (if any) of the acquisition agreement and all other transaction documents relating thereto, (B) the Company shall, and shall cause its Representatives to, negotiate with Parent and its Representatives during such five Business Day notice period (to the extent Parent seeks to negotiate) regarding any adjustments proposed by Parent to the terms and conditions of this Agreement, (C) upon the end of such notice period, the Board of Directors of the Company shall have considered in good faith any revisions to the terms of this Agreement proposed by Parent, and shall have determined, after consultation with its financial advisor and outside legal counsel, that the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal if the adjusted terms of this Agreement proposed by Parent were to be given effect and (D) in the event of any change, from time to time, to any of the financial terms or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) of this proviso and a new notice period under clause (A) of this proviso shall commence each time (except that such notice period shall be reduced to two Business Days), during which time the Company shall be required to comply with the requirements of this Section 6.03(f) anew with respect to each such additional notice. (Page 82) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_23 | Section 6.03 No Solicitation by the Company. <omitted> (f) <omitted> in response to a <omitted> Company Acquisition Proposal <omitted> that the Board of Directors of the Company determines in good faith <omitted> constitutes a Company Superior Proposal, the Board of Directors of the Company may <omitted> (ii) terminate this Agreement in accordance with Section 9.01(d) (iii); provided, that (A) the Company shall first notify Parent in writing at least five Business Days before taking such action of its intention to take such action <omitted> and (D) in the event of any change, from time to time, to any of the financial terms or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) of this proviso and a new notice period under clause (A) of this proviso shall commence each time (except that such notice period shall be reduced to two Business Days), during which time the Company shall be required to comply with the requirements of this Section 6.03(f) anew with respect to each such additional notice. (Page 82) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_17 | 6.3 Stockholders' Approvals.
<omitted>
(b) Notwithstanding anything in this Agreement to the contrary, subject to Section 8.1 and Section 8.2, prior to the receipt of the Requisite BancShares Vote, in the case of BancShares, or the Requisite CIT Vote, in the case of CIT, each of the Boards of Directors of BancShares and CIT may submit this Agreement to its stockholders without recommendation (which, for the avoidance of doubt, shall constitute a Recommendation Change), in which event such Board of Directors may communicate the basis for its lack of recommendation to its stockholders in the Joint Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), if (i)(A) such Board of Directors has received an Acquisition Proposal, which it believes in good faith, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, constitutes a Superior Proposal (in which event, subject to compliance with this Section 6.3(b), the Board of Directors of CIT may cause CIT to terminate this Agreement pursuant to Section 8.1(f) and the Board of Directors of BancShares may cause BancShares to terminate this Agreement pursuant to Section 8.1(g)) or (B) an Intervening Event has occurred, and (ii) such Board of Directors, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that failure to take such actions would more likely than not result in a violation of its fiduciary duty under applicable law, in each case, if, but only if, (1) BancShares and CIT, as applicable, have complied in all material respects with Section 6.12, (2) BancShares or CIT, as applicable, delivers to the other party at least four (4) business days’ prior written notice of its intention to take such action, and furnishes to the other party a reasonable description of the events or circumstances giving rise to its determination to take such action (including, in the event such action is taken in response to an Acquisition Proposal, the identity of the person making such Acquisition Proposal, a copy of the proposed transaction agreement(s) and all other documents relating to such Acquisition Proposal), (3) prior to taking such action, BancShares or CIT, as applicable, negotiates, and causes its financial, legal, and other advisors to negotiate, in good faith with the other party, during the four (4) business day period following BancShares’ or CIT’s, as applicable, delivery of the notice referred to in such sub-clause (2) above (to the extent the party receiving such notice desires to so negotiate), and (4) after the conclusion of such four (4) business day period, the Board of Directors of BancShares or CIT, as applicable, determines in good faith, after giving effect to all of the adjustments (if any) which may be offered by the other party pursuant to sub-clause (3) above, that, in the case of actions described in clause (i) (A) above, such Acquisition Proposal continues to constitute a Superior Proposal and in case of actions described in either clause (i)(A) or clause (i)(B) above, it would nevertheless more likely than not result in a violation of its fiduciary duties under applicable law to make or continue to make the BancShares Board Recommendation or the CIT Board Recommendation, as applicable (it being agreed that, if such actions are being taken in response to an Acquisition Proposal, in the event that, following delivery of the notice referred to in sub-clause (2) above, there is any material revision to the terms of such Acquisition Proposal, including, any revision in price, the four (4) business day period during which the parties agree to negotiate in good faith shall be extended, if applicable, to ensure that at least two (2) business days remain to negotiate subsequent to the time BancShares or CIT, as applicable, notifies the other party of any such material revision (it being understood that there may be multiple extensions)). (Page 58) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_17 | 6.3 Stockholders' Approvals.
<omitted>
(b) <omitted> the Board of Directors of CIT may cause CIT to terminate this Agreement pursuant to Section 8.1(f) <omitted> if, but only if, <omitted> (2) BancShares or CIT, as applicable, delivers to the other party at least four (4) business days’ prior written notice of its intention to take such action <omitted> in the event that, following delivery of the notice referred to in sub-clause (2) above, there is any material revision to the terms of such Acquisition Proposal, including, any revision in price, the four (4) business day period during which the parties agree to negotiate in good faith shall be extended, if applicable, to ensure that at least two (2) business days remain to negotiate subsequent to the time BancShares or CIT, as applicable, notifies the other party of any such material revision (it being understood that there may be multiple extensions)). (Page 58) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_27 | Section 5.4 Company No Solicitation. <omitted>
Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Company Stockholder Approval is obtained, after receiving a bona fide unsolicited written Company Takeover Proposal that did not result from a material breach (or a deemed material breach) of Section 5.4, (x) the Company Board may make a Company Adverse Recommendation Change if the Company Board has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (i) such Company Takeover Proposal constitutes a Company Superior Proposal and (ii) in light of such Company Takeover Proposal, the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law and/or (y) the Company may terminate this Agreement in order to enter into a binding written agreement with respect to a Company Superior Proposal in accordance with Section 7.1(k); provided that the Company Board has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, however, that, prior to making any Company Adverse Recommendation Change or terminating this Agreement as described in clauses (x) and (y) of this sentence, (A) the Company has given Parent at least four Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Company Superior Proposal) and has contemporaneously provided to Parent a copy of the Company Superior Proposal and a copy of any written proposed transaction documents with the person making such Company Superior Proposal, (B) the Company has negotiated in good faith with Parent during such notice period, to the extent Parent wishes to negotiate in good faith, to enable Parent to propose revisions to the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal, (C) following the end of such notice period, the Company Board shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent, and shall have determined, after consultation with its outside financial advisors and outside legal counsel, that the Company Superior Proposal continues to constitute a Company Superior Proposal if the revisions proposed by Parent were to be given effect, and (D) in the event of any change to any material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) above of this proviso and a new notice period under clause (A) of this proviso shall commence (except that the four Business Day notice period referred to in clause (A) above of this proviso shall instead be equal to the longer of (i) three Business Days and (ii) the period remaining under the notice period under clause (A) of this proviso immediately prior to the delivery of such additional notice under this clause (D)) during which time the Company shall be required to comply with the requirements of this Section 5.4(e) anew with respect to such additional notice, including clauses (A) through (D) above of this proviso. (Page 65) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_27 | Section 5.4 Company No Solicitation. <omitted>
prior to <omitted> terminating this Agreement <omitted> (D) in the event of any change to any material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) above of this proviso and a new notice period under clause (A) of this proviso shall commence (except that the four Business Day notice period referred to in clause (A) above of this proviso shall instead be equal to the longer of (i) three Business Days and (ii) the period remaining under the notice period under clause (A) of this proviso immediately prior to the delivery of such additional notice under this clause (D)) (Page 65) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_28 | (d) No Change of Recommendation or Alternative Acquisition Agreement. <omitted>
(iii) Notwithstanding anything to the contrary set forth in this Section 7.2, prior to the Offer Acceptance Time, the Company Board may: (A) effect a Change of Recommendation (1) if (x) an unsolicited bona fide written Acquisition Proposal is received by the Company and has not been withdrawn and receipt of such Acquisition Proposal was not as a result of or related to any breach by the Company of its obligations set forth in Section 7.2(a) in any material respect or (y) an Intervening Event has occurred, and (2) the Company Board determines in good faith, after consultation with outside legal counsel, that based on the -68-
information then available and after consultation with an independent financial advisor of nationally recognized reputation, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, in the case of an Acquisition Proposal contemplated by clause (A)(1)(x) of this Section 7.2(d)(iii), that such Acquisition Proposal constitutes a Superior Proposal; and/or (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent written notice at least ninety-six hours in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action and the basis therefor, and shall also include (y) in the case of a Superior Proposal, all information required by Section 7.2(c), mutatis mutandis, and (z) in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (II) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent to revise this Agreement so that conditions set forth in clause (A)(2) of this Section 7.2(d)(iii) would not be satisfied or the Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) would no longer be with respect to a Superior Proposal, as applicable; and (III) at the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement proposed by Parent in writing and any other information offered by Parent in writing in response to such notice contemplated by clause (I) of this 7.2(d)(iii) prior to the end of the Notice Period, and shall have determined in good faith that, after consultation with outside legal counsel, based on the information then available, and after consultation with an independent financial advisor of nationally recognized reputation, a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, or that such Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii) is an Alternative Acquisition Agreement with respect to a Superior Proposal, as the case may be (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d) (iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). For the avoidance of doubt, the delivery, in and of itself, of any notice contemplated by this Section 7.2(d) will not constitute a Change of Recommendation or violate this Section 7.2(d). (Pages 73-74) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_28 | (d) No Change of Recommendation or Alternative Acquisition Agreement.
<omitted>
(iii) <omitted> the Company Board may: <omitted> (B) cause or permit the Company or any of the Company’s Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal (and the Company may enter into or cause a Subsidiary thereof to enter into such an Alternative Acquisition Agreement) or agree, authorize or commit to do so; provided, however, that no such actions may be taken unless and until: (I) the Company has given Parent <omitted> notice at least ninety-six hours in advance (the “Notice Period”), <omitted> that the Company Board intends to consider whether to take such action <omitted> (it being understood that (y) any material revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 7.2(c) and this Section 7.2(d) (iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to seventy-two hours and (z) prior to the Company or any Subsidiary thereof entering into an Alternative Acquisition Agreement contemplated by clause (B) of this Section 7.2(d)(iii), the Company shall have terminated this Agreement and abandoned the Transactions in accordance with and pursuant to Section 9.3(b)). (Pages 73-74) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_32 | 6.1 Company Board Recommendation; Termination. <omitted> (b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Offer Acceptance Time: (i) if the Company has received a bona fide written Acquisition Proposal from any Person or group of Persons that has not been withdrawn and after consultation with outside legal counsel, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Company Board may make a Company Adverse Recommendation Change, and/or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, in each case, if: (A) the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Recommendation Change or terminating this Agreement pursuant to Section 8.1(e), including, if not already provided, providing to Parent the material terms and conditions of the Acquisition Proposal, at least three (3) business days prior to making any such Company Adverse Recommendation Change or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Recommendation Change or termination); and (B) at the end of the three (3) business-day period following the provision of the Determination Notice, after giving effect to any revisions to the terms of this Agreement irrevocably proposed in writing by Parent or any other proposals irrevocably offered in writing by Parent in response to such Determination Notice, after consultation with outside legal counsel, the Company Board shall have determined, in good faith, that such Acquisition Proposal is a Superior Offer. Issuance of any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Recommendation Change and shall not require the giving of a Determination Notice or compliance with the procedures set forth in this Section 6.1. For the avoidance of doubt, the provisions of this Section 6.1(b)(i) shall also apply to any material amendment to any Acquisition Proposal and require a new Determination Notice, except that the references to three (3) business days shall be deemed to be two (2) business days (Page 46) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_32 | 6.1 Company Board Recommendation; Termination. <omitted> (b) <omitted> (i) if the Company has received a bona fide written Acquisition Proposal <omitted> and <omitted> the Company Board shall have determined <omitted> that such Acquisition Proposal is a Superior Offer, <omitted> (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer <omitted> if: (A) the Company shall have given Parent prior written notice of its intention to consider <omitted> terminating this Agreement pursuant to Section 8.1(e) <omitted> at least three (3) business days prior to <omitted> termination (a “Determination Notice”) <omitted> . <omitted> the provisions of this Section 6.1(b)(i) shall also apply to any material amendment to any Acquisition Proposal and require a new Determination Notice, except that the references to three (3) business days shall be deemed to be two (2) business days (Page 46) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_34 | Section 5.2 No Solicitation by the Company. <omitted>
Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Stockholder Approval is obtained, the Company Board may enter into a Company Acquisition Agreement pursuant to Section 8.1(c) if prior to taking such action the Company Board or any duly constituted and authorized committee thereof has determined in good faith, after consultation with its financial advisors and legal counsel, that (x) failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law, and (y) such Company Takeover Proposal constitutes a Company Superior Proposal; provided, however, that (1) the Company has given Parent at least four calendar days’ prior written notice of its intention to take such action (which notice shall include an unredacted copy of the Company Superior Proposal, an unredacted copy of the relevant proposed transaction agreements and an unredacted copy of any financing commitments relating thereto), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing an offer binding on Parent to effect revisions to the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal, (3) following the end of such notice period, the Company Board or any duly constituted and authorized committee thereof shall have considered in good faith such binding offer, and shall have determined in good faith, after consultation with its financial advisors and legal counsel, that the Company Superior Proposal continues to constitute a Company Superior Proposal if the revisions proposed in such binding offer were to be given effect, (4) in the event of any material change to the terms of such Company Superior Proposal (it being understood that any change in financial terms and any formal written modification shall be deemed material), the Company shall, in each case, again comply with this Section 5.2(d) and shall have delivered to Parent an additional notice consistent with that described in clause (1) above and the notice period shall have recommenced, except that the notice period shall be at least three calendar days rather than the four calendar days otherwise contemplated by clause (1) above, and, if applicable, (5) the Company Board (or any duly constituted and authorized committee thereof) terminates this Agreement pursuant to the terms of Section 8.1(c) to enter into a Company Acquisition Agreement with respect to such Company Superior Proposal; and provided further, that the Company has complied with its obligations under this Section 5.2 (other than any violation that is immaterial in scope and effect); and provided further, that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect, unless the termination is in accordance with Section 8.1(c) and, to the extent required under the terms of this Agreement, the Company pays Parent the applicable Termination Fee in accordance with Section 8.2(b) prior to or concurrently with such termination. (Page 47) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_34 | Section 5.2 No Solicitation by the Company. <omitted>
<omitted> the Company Board may enter into a Company Acquisition Agreement pursuant to Section 8.1(c) if prior to taking such action <omitted> (1) the Company has given Parent at least four calendar days’ <omitted> notice of its intention to take such action <omitted> (4) in the event of any material change to the terms of such Company Superior Proposal (it being understood that any change in financial terms and any formal written modification shall be deemed material), the Company shall, <omitted> have delivered to Parent an additional notice consistent with that described in clause (1) above and the notice period shall have recommenced, except that the notice period shall be at least three calendar days rather than the four calendar days otherwise contemplated by clause (1) above, and, if applicable, (Page 47) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_35 | Section 5.4 No Company Solicitation. <omitted> (e) Notwithstanding anything in this Section 5.4to the contrary, at any time before the Company Stockholder Approval is obtained, the Company Board may make a Company Change of Recommendation or authorize the Company to terminate this Agreement under Section 7.1(d)(i) if: <omitted> (v) at the end of such five (5) Business Day period and taking into account any changes to the terms hereof proposed by Parent in a written definitive agreement duly executed and delivered by Parent (provided, that if Parent has proposed any changes to the terms hereof or the transactions contemplated hereby and there is any subsequent amendment to any material term of such Alternative Acquisition Proposal, the Company Board shall provide a new Company Recommendation Change Notice (including all required information and documents) and an additional three (3) Business Day period from the date of such notice shall apply), the Company Board determines in good faith (after consultation with outside legal counsel and a nationally recognized financial advisor) that such Alternative Acquisition Proposal continues to be a Superior Acquisition Proposal and that the failure to make such a Company Change of Recommendation in response to such Alternative Acquisition Proposal or authorize the Company to terminate this Agreement under Section 7.1(d)(i) would be inconsistent with the Company Board’s fiduciary duties under applicable Law. (Page 61) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_35 | Section 5.4 No Company Solicitation. <omitted> (e) the Company Board may <omitted> authorize the Company to terminate this Agreement under Section 7.1(d)(i) if: <omitted> (v) <omitted> Parent has proposed any changes to the terms hereof <omitted> and there is any subsequent amendment to any material term of such Alternative Acquisition Proposal, the Company Board shall provide <omitted> an additional three (3) Business Day period from the date of such notice shall apply (Page 61) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_36 | Section 6.5 Non-Solicitation; Competing Proposals. <omitted> (d) <omitted> provided, however, that (x) no Adverse Recommendation Change may be made and (y) no termination of this Agreement pursuant to this Section 6.5(d) and Section 8.1(c)(ii) may be effected, in each case unless and until: (i) the fourth (4th) Business Day (the “Notice Period”) following Parent’s receipt of a written notice from the Company advising Parent of the Company’s board of directors’ intent to make an Adverse Recommendation Change (a “Notice of Adverse Recommendation”) or terminate this Agreement pursuant to this Section 6.5(d) and Section 8.1(c)(ii) (a “Notice of Superior Proposal”), which Notice of Adverse Recommendation shall specify in reasonable detail the applicable Intervening Event or Superior Proposal and which Notice of Superior Proposal shall specify the terms and conditions (and include the most current version of each proposed Contract providing for such Superior Proposal, including any Contract relating to financing) of any such Competing Proposal which the board of directors of the Company has concluded constitutes a Superior Proposal and the identity of the Person making such Competing Proposal, (ii) during the Notice Period, if requested by Parent, the Company and its Representatives shall negotiate with Parent and its Representatives in good faith (to the extent Parent so desires to negotiate) to make adjustments to the terms and conditions of this Agreement so that either the failure to make an Adverse Recommendation Change in response to such Intervening Event would no longer be reasonably expected to be inconsistent with the fiduciary duties of the board of directors of the Company under applicable Law or such Competing Proposal would cease to constitute a Superior Proposal, as appropriate, and (iii) in determining whether to make such Adverse Recommendation Change or terminate this Agreement pursuant to this Section 6.5(d) and Section 8.1(c)(ii), as applicable, the board of directors of the Company shall take into account any changes to the terms of this Agreement timely proposed by Parent in response to a Notice of Adverse Recommendation or a Notice of Superior Proposal during the Notice Period (as may be extended). Any material revision to any Competing Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 6.5(d); provided that the new Notice Period shall be three (3) Business Days (but in no event shorter than the original four (4) Business Day Notice Period). (Page 53) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_36 | Section 6.5 Non-Solicitation; Competing Proposals. <omitted> (d) <omitted> no termination of this Agreement pursuant to this Section 6.5(d) and Section 8.1(c)(ii) may be effected <omitted> unless and until: (i) <omitted> following Parent’s receipt of a <omitted> notice from the Company advising Parent of the Company’s board of directors’ intent to <omitted> terminate this Agreement pursuant to this Section 6.5(d) and Section 8.1(c)(ii) (a “Notice of Superior Proposal”), <omitted> Any material revision to any Competing Proposal shall require a new Notice of Superior Proposal <omitted> provided that the new Notice Period shall be three (3) Business Days (but in no event shorter than the original four (4) Business Day Notice Period). (Page 53) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_41 | Section 5.03 Solicitation; Change of Company Recommendation. <omitted> (e) <omitted> (iii) prior to making such Change of Company Recommendation in accordance with Section 5.03(e) or terminating this Agreement in accordance with Section 7.01(d) in order to enter into the Alternative Acquisition Agreement, as applicable, if requested by Parent, the Company has negotiated, and directed the applicable Representatives of the Company to negotiate, in good faith with Parent during the three (3) Business Days (as may be extended by two (2) Business Days solely as required by clause (iv) below) following the date of such Notice of Superior Proposal Change of Recommendation with respect to any changes to the terms of this Agreement proposed by Parent in response thereto; and (iv) taking into account any changes to the terms of this Agreement offered by Parent pursuant to clause (iii) above and any other information provided by Parent in response to such Notice of Superior Proposal Change of Recommendation, the Company Board (or any committee thereof) has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Competing Proposal would continue to constitute a Superior Proposal and that the failure to make such Change of Company Recommendation or to terminate this Agreement in accordance with Section 7.01(d), as applicable, would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided that any amendment to the financial terms or any other material term or condition of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii) above) shall require a new Notice of Superior Proposal Change of Recommendation and an additional two (2) Business Day-notice period from the date of such notice during which the terms of clause (iii) above and this clause (iv) shall apply mutatis mutandis (other than the number of Business Days). (Page 25) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_41 | Section 5.03 Solicitation; Change of Company Recommendation. <omitted> (e) <omitted> (iii) prior to <omitted> or terminating this Agreement <omitted> in order to enter into the Alternative Acquisition Agreement, as applicable, if requested by Parent, the Company has negotiated, and directed the applicable Representatives of the Company to negotiate, in good faith with Parent during the three (3) Business Days (as may be extended by two (2) Business Days solely as required by clause (iv) below) following the date of such Notice of Superior Proposal Change of Recommendation with respect to any changes to the terms of this Agreement proposed by Parent in response thereto; and (iv) taking into account any changes to the terms of this Agreement offered by Parent pursuant to clause (iii) above and any other information provided by Parent in response to such Notice of Superior Proposal Change of Recommendation, the Company Board (or any committee thereof) has determined in good faith <omitted> to terminate this Agreement <omitted> shall require a new Notice of Superior Proposal Change of Recommendation and an additional two (2) Business Day-notice period from the date of such notice during which the terms of clause (iii) above and this clause (iv) shall apply mutatis mutandis (other than the number of Business Days). (Page 25) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_45 | Section 7.2 Company Acquisition Proposals. <omitted>
(e) Notwithstanding anything to the contrary in this Agreement but subject to Section 7.2(f), prior to the time the Company Stockholder Approval is obtained, the Company Board may effect a Company Adverse Recommendation Change (and, in the case of a Company Acquisition Proposal that did not result from a breach of this Section 7.2, terminate this Agreement pursuant to Section 9.1(d)(ii) and concurrently pay the fees required by Section 9.3 in order to enter into a definitive agreement in connection with a Superior Proposal) if: (i) (A) a bona fide written Company Acquisition Proposal is made to the Company after the date of this Agreement that did not result from a breach of this Section 7.2 and such Company Acquisition Proposal is not withdrawn prior to such Company Adverse Recommendation Change or (B) there has been an Intervening Event; (ii) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that (x) such Company Acquisition Proposal constitutes a Superior Proposal and (y) failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Laws; and (iii) in the case of an Intervening Event, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Laws. 74
(f) Prior to making any Company Adverse Recommendation Change or entering into any Alternative Acquisition Agreement: (i) the Company Board shall provide Parent at least four Business Days’ prior written notice of its intention to take such action, which notice shall specify, in reasonable detail, in the case of a Superior Proposal, all required information under Section 7.2(d) and, in the case of an Intervening Event, a reasonably detailed description of such Intervening Event; (ii) during the four Business Days following such written notice, the Company Board shall, and shall cause its Representatives to, negotiate in good faith with Parent (to the extent requested by Parent) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Proposal or Intervening Event, as applicable; and (iii) at the end of the four Business Day period described in the foregoing clause (ii), the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and outside financial advisors (and taking into account any legally binding (if accepted by the Company) adjustment or modification of the terms of this Agreement proposed in writing by Parent), that, as applicable (A) the Company Acquisition Proposal continues to be a Superior Proposal or (B) the Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Laws (it being understood and agreed that any material amendments or other material revisions to any Company Acquisition Proposal that was previously the subject of a notice hereunder will be deemed to be a new Company Acquisition Proposal, and shall require a new notice to Parent as provided above, but, with respect to any subsequent notice, references herein to “four Business Days” shall be deemed references to “two Business Days”). (Pages 75-76) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_45 | Section 7.2 Company Acquisition Proposals. <omitted>
(e) <omitted> subject to Section 7.2(f), prior to the time the Company Stockholder Approval is obtained, the Company Board may <omitted> ( <omitted> in the case of a Company Acquisition Proposal <omitted> , terminate this Agreement pursuant to Section 9.1(d)(ii) <omitted> in order to enter into a definitive agreement in connection with a Superior Proposal)
<omitted>
(f) Prior to <omitted> entering into any Alternative Acquisition Agreement: (i) the Company Board shall provide Parent <omitted> prior written notice of its intention to take such action <omitted> (it being understood and agreed that any material amendments or other material revisions to any Company Acquisition Proposal that was previously the subject of a notice hereunder will be deemed to be a new Company Acquisition Proposal, and shall require a new notice to Parent as provided above, but, with respect to any subsequent notice, references herein to “four Business Days” shall be deemed references to “two Business Days”). (Pages 75-76) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_49 | 8.1 Termination. This Agreement may be terminated and the Merger may be abandoned (with respect to Sections 8.1(b) through 8.1(h), by written notice by the terminating party to the other party), whether before or, subject to the terms hereof, after stockholder approval hereof: <omitted>
(f) by the Company, at any time prior to receipt of the Company Stockholder Approval, in the event that: (i) the Company shall have received a Superior Proposal; (ii) the Company Board has determined in good faith (after consultation with outside counsel) that the failure proceed pursuant to this Section 8.1(f) would be reasonably likely to be inconsistent with its fiduciary obligations under applicable law; (iii) so long as the Company and its Subsidiaries are not in material breach of their obligations pursuant to Section 6.1 with respect to such Superior Proposal; (iv) the Company has notified the Parent in writing that it intends to enter into a definitive agreement relating to such Superior Proposal, specifying the material terms and conditions of such Superior Proposal (a “Superior Proposal Notice”) (it being understood that the Superior Proposal Notice shall not constitute a Company Board Recommendation Change or a Trigger Event for purposes of this Agreement); (v) if requested by the Parent, the Company shall have made its Representatives available to negotiate with the Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to the Parent of such Superior Proposal Notice; provided, however, that in the event of any material revisions to such Superior Proposal, the Company will be required to notify Parent of such revisions and the applicable three (3) Business Day period described above shall be extended until two (2) Business Days after the time Parent receives notification from the Company of such revisions; (vi) if the Parent shall have delivered to the Company a written, binding and irrevocable offer to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Company Board shall have determined in good faith (after consultation with outside counsel), after considering the terms of such offer by the Parent, that the Superior Proposal giving rise to such Superior Proposal Notice continues to be a Superior Proposal and it would still be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable law not to accept such Superior Proposal; and (vii) concurrently with the termination of this Agreement, the Company pays the Parent the Termination Fee contemplated by Section 8.3(b)(ii) and enters into the definitive agreement to consummate the transaction contemplated by such Superior Proposal; (Page 50) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_49 | 8.1 Termination. This Agreement may be terminated <omitted>
(f) by the Company, <omitted> in the event that: <omitted> (iv) the Company has notified the Parent <omitted> that it intends to enter into a definitive agreement relating to such Superior Proposal, <omitted> provided, however, that in the event of any material revisions to such Superior Proposal, the Company will be required to notify Parent of such revisions and the applicable three (3) Business Day period described above shall be extended until two (2) Business Days after the time Parent receives notification from the Company of such revisions; (Page 50) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_50 | 7.5 Acquisition Proposals. <omitted> (b ) No Change in Recommendation or Alternative Acquisition Agreement . Except as permitted in this Section 7.5(b), neither the Company Board, the Hospitality Board nor any of their committees shall: (i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Company Board Recommendation or the Hospitality Board Recommendation, (B) authorize, approve, adopt or recommend or otherwise declare advisable (or publicly propose or resolve to authorize, approve, adopt or recommend or otherwise declare advisable) any Acquisition Proposal or (C) fail to include the Company Board Recommendation and the Hospitality Board Recommendation in the Joint Proxy Statement (either of the foregoing, a “Change of Recommendation”); or ( i i ) except as expressly permitted by, and after compliance with this Section 7.5, authorize, approve, adopt or recommend or otherwise declare advisable (or publicly propose or resolve to authorize, approve, adopt or recommend or otherwise declare advisable), or cause or permit any Paired Entity or any Paired Entities Subsidiary to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in compliance with Section 7.5(a)). Notwithstanding anything to the contrary set forth in this Agreement, the Company Board or the Hospitality Board may, prior to but not after the time the Requisite Vote is obtained, (A) make a Change of Recommendation if an Intervening Event has occurred and if, after consulting with its financial advisor and outside legal counsel, the Company Board or the Hospitality Board determines in good faith that the failure to take such action would be reasonably likely to be inconsistent with such directors’ fiduciary duties under applicable Law or (B) if the Paired Entities have not breached this Section 7.5(c) and have not breached the other subsections of this Section 7.5 in any material respect, make a Change of Recommendation and/or terminate this Agreement pursuant to Section 9.1(c)(i) if the Paired Entities receive an Acquisition Proposal (not resulting from a breach of this Section 7.5) that the Company Board and the Hospitality Board have determined in good faith, after consulting with their financial advisor and outside legal counsel, (x) constitutes a Superior Proposal after having complied with, and giving effect to all of the adjustments which may be offered by Parent pursuant to, this Section 7.5(b) and such Acquisition Proposal is not withdrawn and (y) the failure to take such action would be reasonably likely to be inconsistent with such directors’ fiduciary duties under applicable Law; provided that neither the Company Board nor the Hospitality Board may take any such action unless prior to making such Change of Recommendation or authorizing such termination to enter into a definitive written agreement providing for the implementation of such Superior Proposal pursuant to Section 9.1(c)(i), (I) the Paired Entities provide prior written notice (“Notice Period Commencement Notice”) to Parent at least four (4) Business Days in advance (the “Notice Period”) of their intention to take such action, which notice shall include, in the case of a Superior Proposal, the name of the person or group making the Superior Proposal and substantial final draft of the definitive agreement reflecting such Superior Proposal and, in the case of an Intervening Event, a reasonably detailed description of such Intervening Event, (II) if requested by Parent, during the Notice Period the Paired Entities shall, and shall direct their Representatives to, negotiate with Parent in good faith should Parent propose to make amendments or other revisions to the terms and conditions of this Agreement such that, in the case of a Superior Proposal, such Acquisition Proposal no longer constitutes a Superior Proposal and, in the case of an Intervening Event, the failure to take such action is no longer reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law as determined in the good faith judgment of the Company Board or the Hospitality Board after consulting with their financial advisor and outside legal counsel and (III) the Company Board and the Hospitality Board has taken into account any amendments or other revisions to the terms and conditions of this Agreement agreed to by Parent in writing prior to the end of the Notice Period and (1) the Company Board and the Hospitality Board determined in good faith that, after consulting with its financial advisor and outside legal counsel, in the case of an Intervening Event, a failure to make such Change of Recommendation continues to be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law and (2) the Company Board and the Hospitality Board determined in good faith that, after consulting with their financial advisor and outside legal counsel, in the case of an Acquisition Proposal, the Acquisition Proposal giving rise to such Change of Recommendation continues to constitute a Superior Proposal and the failure to make such Change of Recommendation continues to be inconsistent with the directors’ fiduciary duties under applicable Law; it being understood that any change to the financial terms or any other material amendments or other material revisions to any Acquisition Proposal will be deemed to be a new Acquisition Proposal, including for purposes of the Notice Period; provided, however, that, subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice Period Commencement Notice. (Page 59) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_50 | 7.5 Acquisition Proposals. <omitted> (b ) No Change in Recommendation or Alternative Acquisition Agreement . <omitted> the Company Board or the Hospitality Board may, prior to but not after the time the Requisite Vote is obtained, <omitted> terminate this Agreement pursuant to Section 9.1(c)(i) if the Paired Entities receive an Acquisition Proposal (not resulting from a breach of this Section 7.5) that the Company Board and the Hospitality Board have determined <omitted> constitutes a Superior Proposal <omitted> ; provided that <omitted> (I) the Paired Entities provide prior written notice (“Notice Period Commencement Notice”) to Parent <omitted> it being understood that any change to the financial terms or any other material amendments or other material revisions to any Acquisition Proposal will be deemed to be a new Acquisition Proposal, including for purposes of the Notice Period; provided, however, that, subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice Period Commencement Notice. (Page 59) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_53 | Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) Notwithstanding anything in this Agreement to the contrary, prior to the time, but not after, the Company Requisite Vote is obtained, if a written Acquisition Proposal that did not otherwise result from a breach (other than an unintentional or de minimis breach) of Section 6.1 is received by the Company, and the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may, if the Board of Directors of the Company has determined in good faith after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary -40-
duties under applicable Law, (x) effect a Change of Recommendation and/or (y) terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal; provided, however, that the Company pays to Parent any Company Termination Payment required to be paid pursuant to Section 8.2(b)(i); provided further, that, prior to taking such action described in clauses (x) and/or (y) above, (A) the Company shall give Parent written notice four (4) Business Days in advance (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4 th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), which notice shall set forth in writing (I) that the Board of Directors of the Company has received a written Acquisition Proposal that would, if consummated, constitute a Superior Proposal, (II) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Acquisition Proposal and all other documents (other than immaterial documents) related to the Superior Proposal and (III) advise Parent that the Board of Directors of the Company intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.1(d)(ii) in order to enter into a definitive written agreement providing for such Superior Proposal (such notice, the “Company Notice”), (B) after giving such Company Notice and as a condition precedent to taking any action described in clauses (x) or (y) above, the Company and its Representatives shall negotiate in good faith with Parent (to the extent requested by Parent), to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal and (C) at the end of the Notice Period, prior to and as a condition precedent to taking any action described in clauses (x) or (y) above, the Board of Directors of the Company shall take into account in good faith any changes to the terms of this Agreement proposed in writing by Parent in response to the Company Notice and any other information offered by Parent in response to the Company Notice, and shall have determined in good faith after consultation with its outside legal counsel and its financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal, if such changes offered in writing by Parent (if any) were to be given effect. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” and such three 31) Business Day period shall expire at 5:00 p.m. on the Business Day immediately following the day on which such new Company Notice is delivered (it being understood and agreed that in no event shall any such additional three (3) Business Day notice period be deemed to shorten the initial four (4) Business Day notice period). (Pages 49-50) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_53 | Non-Solicitation; Acquisition Proposals; Change of Recommendation
<omitted>
(c) Change of Recommendation.
<omitted>
(i) <omitted> if a written Acquisition Proposal <omitted> is received by the Company, and the Board of Directors of the Company determines <omitted> that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, the Board of Directors of the Company may <omitted> (y) terminate this Agreement <omitted> ; provided further, that <omitted> Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Section 6.1(d) and this Section 6.1(c)(i) and require a new Company Notice, except that references in this Section 6.1(c)(i) to “four (4) Business Days” shall be deemed to be references to “three (3) Business Days” (Pages 49-50) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_54 | Section 5.11 No Solicitation by First Choice; Superior Proposals. <omitted> ( e ) Notwithstanding Section 5.11(d) or any other provision of this Agreement, prior to obtaining the Requisite First Choice Shareholder Approval, the First Choice Board (or any committee thereof) may make a First Choice Subsequent Determination after the fifth (5 ) Business Day following Enterprise’s receipt of a notice (the “Notice of Determination”) from First Choice informing Enterprise that the First Choice Board (or such committee) has determined in good faith, after consultation with outside legal counsel and its financial advisor,
th
68
that an Acquisition Proposal constitutes a Superior Proposal and the failure to make a First Choice Subsequent Determination with respect to such Superior Proposal would breach or reasonably be expected to result in a breach of its fiduciary duties under applicable Law (it being understood that the initial determination under this clause will not be considered a First Choice Subsequent Determination), but only if: (i) the Notice of Determination includes or is accompanied by the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, including copies of any proposed material agreements providing for such Superior Proposal; (ii) during the five (5) Business Day period after receipt of the Notice of Determination (the “Notice Period”), First Choice and the First Choice Board shall have negotiated in good faith with Enterprise, to the extent Enterprise desires to negotiate, to make such adjustments, modifications or amendments to the terms and conditions of this Agreement as would enable First Choice to proceed with the First Choice Recommendation without a First Choice Subsequent Determination; provided, however, that Enterprise shall not have any obligation to propose any adjustments, modifications or amendments to the terms and conditions of this Agreement, and (iii) at the end of the Notice Period, after taking into account any such adjusted, modified or amended terms, if any, as may have been proposed by Enterprise in writing before expiration of the Notice Period, the First Choice Board has again in good faith, after consultation with outside legal counsel and its financial advisor, made the determination that such Acquisition Proposal constitutes a Superior Proposal and the failure to make a First Choice Subsequent Determination with respect to such Superior Proposal would breach or reasonably be expected to result in a breach of its fiduciary duties under applicable Law. In the event of any material revisions to an Acquisition Proposal that is the subject of a Notice of Determination and that occur prior to a First Choice Subsequent Determination, First Choice shall be required to deliver a new Notice of Determination to Enterprise and again comply with the requirements of this Section 5.11(e), except that the Notice Period shall be reduced to three (3) Business Days.
<omitted>
Section 7.01 Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned: <omitted> (i) Superior Proposal. By First Choice, at any time prior to the Requisite First Choice Shareholder Approval being obtained, in the event that the First Choice Board (or any committee thereof) makes a First Choice Subsequent Determination with respect to a Superior Proposal; provided, that First Choice has complied with all of its obligations under Section 5.11. (Pages 73-74) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_54 | Section 5.11 No Solicitation by First Choice; Superior Proposals. <omitted> In the event of any material revisions to an Acquisition Proposal that is the subject of a Notice of Determination and that occur prior to a First Choice Subsequent Determination, First Choice shall be required to deliver a new Notice of Determination to Enterprise and again comply with the requirements of this Section 5.11(e), except that the Notice Period shall be reduced to three (3) Business Days.
<omitted>
Section 7.01 Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned: <omitted> (i) Superior Proposal. By First Choice, at any time prior to the Requisite First Choice Shareholder Approval being obtained, in the event that the First Choice Board (or any committee thereof) makes a First Choice Subsequent Determination with respect to a Superior Proposal; provided, that First Choice has complied with all of its obligations under Section 5.11. (Pages 73-74) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_52 | Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) informing Parent that the Company has determined that a Company Acquisition Proposal constitutes a Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing a copy of the draft agreement intended to effect such Company Superior Proposal, (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), permitted Parent to make counteroffers or proposals, including to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so), and (iii) after complying with clauses (i) and (ii), determined in good faith (after consultation with the Company’s outside legal counsel and financial advisors and taking into account any such counteroffer or proposed amendment to the terms and conditions of this Agreement) that such Company Acquisition Proposal remains a Company Superior Proposal; provided, however, that if during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent and shall comply with the requirements of this Section 5.3(f) with respect to such new Notice of Company Superior Proposal (except that the “four (4) Business Day” period referred to in clause (ii) of this proviso shall instead be a two (2) Business Day period). (Page 59) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_52 | Section 5.3 Company Acquisition Proposals. <omitted>
(e) <omitted> the Company <omitted> may terminate this Agreement pursuant to Section 7.1(d)(ii) <omited> and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided <omitted> notice to Parent (a “Notice of Company Superior Proposal”) <omitted> provided, however, that if during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent <omitted> (except that the “four (4) Business Day” period referred to in clause (ii) of this proviso shall instead be a two (2) Business Day period). (Page 59) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_58 | Section 5.4 Acquisition Proposals.
<omitted>
(d) Notwithstanding anything to the contrary in this Section 5.4, following receipt of a written Acquisition Proposal that did not result from a breach of this Section 5.4, and that the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, the Company Board may at any time prior to the receipt of the Company Stockholder Approval, but not after, make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: 37
(i) (A) the Company shall have provided to Parent four Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board has determined to make an Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.1(c)(ii) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.1(c)(ii), as applicable, (x) the Company shall have used commercially reasonable efforts to engage in good faith with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider any adjustments proposed by Parent to the terms and conditions of this Agreement such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal and (y) in determining whether to make an Adverse Recommendation Change or to effect a termination in accordance with Section 7.1(c)(ii), the Company Board shall have taken into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice; and (Pages 44-45) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_58 | Section 5.4 Acquisition Proposals.
<omitted>
(d) <omitted> following receipt of a written Acquisition Proposal <omitted> that the Company Board determines <omitted> constitutes a Superior Proposal, the Company Board may <omitted> terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii) <omitted> if all of the following conditions are met: <omitted> (i) (A) the Company shall have provided to Parent <omitted> notice <omitted> (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) (Pages 44-45) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_59 | Section 5.4 Acquisition Proposals. <omitted> (d) Notwithstanding anything to the contrary set forth in this Section 5.4, following receipt of a written Acquisition Proposal that did not result from a breach of this Section 5.4, and that the Company Board (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, the Company Board and the Special Committee may at any time prior to the receipt of the Company Stockholder Approval, but not after, make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: (i) (A) the Company shall have provided to Parent four Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board (acting upon the recommendation of the Special Committee) has determined to make an Adverse Recommendation Change or to terminate this Agreement in accordance with Section 7.1(c)(ii) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such Adverse Recommendation Change or terminating this Agreement in accordance with Section 7.1(c)(ii), as applicable, (x) the Company shall have used commercially reasonable efforts to engage in good faith with Parent (to the extent Parent wishes to engage) during such four Business Day period to consider any adjustments proposed by Parent to the terms and conditions of this Agreement such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal and (y) in determining whether to make an Adverse Recommendation Change or to effect a termination in accordance with Section 7.1(c)(ii), the Company Board and the Special Committee shall have taken into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice; (Pages 43-44) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_59 | Section 5.4 Acquisition Proposals. <omitted> the Company Board and the Special Committee may <omitted> terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 7.1(c)(ii) <omitted> if all of the following conditions are met: (i) (A) the Company shall have provided to Parent <omitted> written notice, which shall state expressly <omitted> (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional three Business Day period) and (3) that, subject to clause (ii) below, the Company Board (acting upon the recommendation of the Special Committee) has determined to <omitted> terminate this Agreement in accordance with Section 7.1(c)(ii) (Pages 43-44) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_62 | 5.4 No Solicitation by the Company; Other Offers. <omitted> (e) Notwithstanding anything to the contrary set forth in Section 5.4(d), the Company shall not be entitled to: (i) make a Change in Company Board Recommendation pursuant to Section 5.4(d)(i) or Section 5.4(d)(ii); or (ii) terminate this Agreement (and, if applicable, enter into any Company Acquisition Agreement) pursuant to Section 5.4(d)(iii), unless: (A) the Company shall have first provided prior written notice to Parent that it is prepared to (I) make a Change in Company Board Recommendation (a “Recommendation Change Notice”), or (II) terminate this Agreement pursuant to Section 7.1(h) in response to a Superior Proposal (a “Superior Proposal Notice”), which notice shall, if the basis for the proposed action by the Company Board is not related to a Superior Proposal, contain a description of the Intervening Event giving rise to such proposed action or, if the basis for the proposed action by the Company Board is a Superior Proposal, contain a description of the material terms and conditions of such Superior Proposal (including the identity of the Person making the Superior Proposal unless prohibited by the terms of a confidentiality or other similar agreement in effect as of the date 40 hereof) and a copy of the Company Acquisition Agreement in the form to be entered into (it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed to be a Change in Company Board Recommendation); (B) during the three (3) Business Day period commencing on the date of Parent’s receipt of such notice, the Company shall have made its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal, and (C) (1) in the case of a Recommendation Change Notice, Parent does not make, within three (3) Business Days after the receipt of such notice, a proposal that would, in the good-faith judgment of the Company Board (after consultation with outside counsel), cause the Intervening Event to no longer form the basis for the Company Board to effect a Change in Company Board Recommendation and (2) in the case of a Superior Proposal Notice, after the expiration of the negotiation period described in clause (B) above, the Company Board shall have determined in good faith, after taking into account any amendments to this Agreement and the Offer that Parent and Purchaser have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (B) above, that (X) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal constitutes a Superior Proposal, and (Y) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Company Acquisition Agreement would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. Any material changes with respect to the Intervening Event mentioned above, or material changes to the financial terms of such Superior Proposal, as the case may be, occurring prior to the Company’s effecting a Change in Company Board Recommendation or terminating this Agreement pursuant to Section 7.1(h) shall require the Company to provide to Parent a new Recommendation Change Notice or Superior Proposal Notice and a new three (3) Business Day period. (Pages 45-46) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_62 | 5.4 No Solicitation by the Company; Other Offers. <omitted> the Company shall not be entitled to: <omitted> (ii) terminate this Agreement (and, if applicable, enter into any Company Acquisition Agreement) pursuant to Section 5.4(d)(iii), unless: (A) the Company shall have first provided prior <omitted> notice to Parent that it is prepared to <omitted> (II) terminate this Agreement pursuant to Section 7.1(h) in response to a Superior Proposal (a “Superior Proposal Notice”) <omitted> Any <omitted> material changes to the financial terms of such Superior Proposal <omitted> occurring prior to the Company’s <omitted> terminating this Agreement pursuant to Section 7.1(h) shall require the Company to provide to Parent a new <omitted> Superior Proposal Notice and a new three (3) Business Day period. (Pages 45-46) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_64 | Section 4.4 No Solicitation of Transactions. <omitted> (f) Notwithstanding anything in this Agreement to the contrary, the Company Board may, prior to obtaining the Company Stockholder Approval and subject to the other provisions of this Section 4.4, (x) effect a Change of Board Recommendation in response to a Superior Proposal and/or (y) validly terminate this Agreement pursuant to Section 6.1(e), if (i) the Company receives a Qualifying Acquisition Proposal that the Company Board determines in good faith (after consultation with one or more of its financial advisors and outside legal counsel) is a Superior Proposal and (ii) the Company Board determines in good faith (after consultation with its outside legal counsel) that its failure to effect a Change of Board Recommendation or terminate this Agreement pursuant to Section 6.1(e) would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that the Company Board may not effect a Change of Board Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless: <omitted> (ii) the Company shall have provided prior written notice to Parent, at least four (4) Business Days in advance (the “Superior Proposal Notice Period”), of its intention to effect such a Change of Board Recommendation in response to a Superior Proposal (which notice itself shall not constitute a Change of Board Recommendation) or validly terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal and the identity of the Person or group making such Superior Proposal, and shall have contemporaneously provided a copy of the relevant proposed definitive transaction agreements with the Person making such Superior Proposal; (iii) if requested by Parent, the Company shall have negotiated with, and shall have caused the Company Representatives to negotiate with, Parent in good faith during the Superior Proposal Notice Period in order to enable Parent to modify the terms of this Agreement in such a manner that would eliminate the need for taking such action (and would cause such Superior Proposal to no longer constitute a Superior Proposal) as determined by the Company Board in good faith (after consultation with one or more of its financial advisors and outside legal counsel); (iv) following the Company’s and the Company Representatives’ negotiation in good faith with Parent, to the extent such negotiation is requested by Parent, during the Superior Proposal Notice Period and after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by Parent, if any, the Company Board (after consultation with one or more of its financial advisors and outside legal counsel) shall have determined in good faith that such Superior Proposal still constitutes a Superior Proposal (it being understood and agreed that any change to the financial or other material terms of an Acquisition Proposal that was previously the subject of a notice hereunder shall require a new notice to Parent as provided above, but with respect to any such subsequent notices the Superior Proposal Notice Period shall be deemed to be three (3) Business Days rather than four (4) Business Days); and (Page 23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_64 | Section 4.4 No Solicitation of Transactions. <omitted> (f) <omitted> the Company Board may <omitted> (y) validly terminate this Agreement pursuant to Section 6.1(e), if (i) the Company receives a Qualifying Acquisition Proposal that the Company Board determines <omitted> is a Superior Proposal and (ii) the Company Board determines <omitted> that its failure to <omitted> terminate this Agreement pursuant to Section 6.1(e) would be inconsistent with its fiduciary duties <omitted> ; provided that the Company Board may not <omitted> terminate this Agreement pursuant to the foregoing clause (y) unless: <omitted> (ii) the Company shall have provided prior <omitted> notice to Parent, <omitted> (it being understood and agreed that any change to the financial or other material terms of an Acquisition Proposal that was previously the subject of a notice hereunder shall require a new notice to Parent as provided above, but with respect to any such subsequent notices the Superior Proposal Notice Period shall be deemed to be three (3) Business Days rather than four (4) Business Days); and (Page 23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_73 | 5.2 Company Stockholders’ Meeting.
<omitted>
(f) <omitted> (i) the Company’s board of directors may <omitted> cause the Company to terminate this Agreement in accordance with Section 8.1(j) and, concurrently with such termination, approve, and cause the Company to enter into, a Specified Company Acquisition Agreement in accordance with, and subject to compliance with, the provisions of Section 8.1(j) if (and only if): <omitted> (D) <omitted> prior to <omitted> terminating this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, the Company’s board of directors delivers to Marvell <omitted> notice
<omitted>
For purposes of clause “(i)” of this Section 5.2(f), any change in the form or amount of the consideration payable in connection with a Company Superior Offer, and any other material change to any of the terms of a Company Superior Offer, will be deemed to be a new Company Superior Offer, requiring a new Company Recommendation Change Notice and a new advance notice period, except that the advance notice period applicable to any such change to a Company Superior Offer pursuant to clause “(i)(D)” of this Section 5.2(f) shall be two Business Days rather than four Business Days, and the negotiation period in clause “(i)(E)” of this Section 5.2(f) shall be two Business Days rather than four Business Days. The Company shall ensure that any withdrawal or modification of the Company Board Recommendation does not have the effect of causing any corporate Takeover Statute of the State of Delaware or any other state to be applicable to this Agreement or any of the Contemplated Transactions. (Page 66) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_73 | 5.2 Company Stockholders’ Meeting.
<omitted>
(f) <omitted> (i) the Company’s board of directors may <omitted> cause the Company to terminate this Agreement in accordance with Section 8.1(j) and, concurrently with such termination, approve, and cause the Company to enter into, a Specified Company Acquisition Agreement in accordance with, and subject to compliance with, the provisions of Section 8.1(j) if (and only if): <omitted> (D) <omitted> prior to <omitted> terminating this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, the Company’s board of directors delivers to Marvell <omitted> notice
<omitted>
For purposes of clause “(i)” of this Section 5.2(f), any change in the form or amount of the consideration payable in connection with a Company Superior Offer, and any other material change to any of the terms of a Company Superior Offer, will be deemed to be a new Company Superior Offer, requiring a new Company Recommendation Change Notice and a new advance notice period, except that the advance notice period applicable to any such change to a Company Superior Offer pursuant to clause “(i)(D)” of this Section 5.2(f) shall be two Business Days rather than four Business Days, and the negotiation period in clause “(i)(E)” of this Section 5.2(f) shall be two Business Days rather than four Business Days. (Page 66) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_79 | 6.3 No Solicitation by the Company. <omitted> Notwithstanding the foregoing, in the event that, prior to obtaining the Company Stockholder Approval, the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that it has received a Company Superior Proposal that was not solicited, initiated, knowingly encouraged or knowingly facilitated or otherwise procured in violation of this Section 6.3(a) (other than any violation that is immaterial in scope and effect), the Company Board may effect a Company Recommendation Change or terminate this Agreement pursuant to Section 8.1(g) if (A) the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (B) the Company has notified Parent in writing that it intends to take such action, (C) the Company has provided Parent with a copy of the proposed definitive agreements between the Company and the person making such Company Superior Proposal, and the identity of the person making such Company Superior Proposal, (D) for a period of four (4) Business Days following the notice delivered pursuant to clause (B) of this Section 6.3(b), the Company shall have discussed and negotiated in good faith and made the Company’s Representatives available to discuss and negotiate in good faith (in each case to the extent Parent desires to negotiate) with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement or the transactions contemplated by this Agreement so that the failure to take such action would no longer be inconsistent with the fiduciary duties under applicable Law of the Company Board (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period that shall expire on the later to occur of (I) two (2) Business Days following delivery of such new notice from the Company to Parent and (II) the expiration of the original four (4)-Business Day period described in clause (D) above), and (E) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation with its outside financial advisors and outside legal counsel, and after considering the terms of any proposed amendment or modification to this Agreement, that (x) the Company Alternative Transaction that is the subject of the notice described in clause (B) above still constitutes a Company Superior Proposal and (y) the failure to take such action would still be inconsistent with its fiduciary duties under applicable Law. (Page 49) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_79 | 6.3 No Solicitation by the Company. <omitted> prior to obtaining the Company Stockholder Approval, <omitted> the Company Board may <omitted> terminate this Agreement pursuant to Section 8.1(g) if <omitted> (B) the Company has notified Parent in writing that it intends to take such action, <omitted> (it being understood and agreed that any amendment to any material term or condition of any Company Superior Proposal shall require a new notice and a new negotiation period that shall expire on the later to occur of (I) two (2) Business Days following delivery of such new notice from the Company to Parent and (II) the expiration of the original four (4)-Business Day period described in clause (D) above), (Page 49) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_80 | Section 5.2. No Solicitation. <omitted> (c) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board may make a Change in Recommendation in response to an unsolicited bona fide written Acquisition Proposal or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal, in each case only if: (i) such Acquisition Proposal or Superior Proposal did not result from a breach of Section 5.2(a); (ii)the Company Board (or a committee thereof) determines in good faith (A) after consultation with the Company’s outside legal counsel and Independent Financial Advisor, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation or to cause the Company to enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under the DGCL; (iii)the Company delivers to Parent a written notice (the “ Superior Proposal Notice”) stating that the Company Board intends to take such action and including the identity of the Person making the Acquisition Proposal and the material terms thereof (including copies of all material documents relating to the Alternative Acquisition Agreement, including a copy of the proposed Alternative Acquisition Agreement) and otherwise in compliance with the terms of Section 5.2(e); (iv)during the five (5) Business Day period following the date of Parent’s receipt of such Superior Proposal Notice (such time period, the “Notice Period”), the Company makes its Representatives reasonably available for the purpose of engaging in negotiations with Parent, and the Company and its Representatives shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal;
<omitted>
For purposes of this Section 5.2(c), in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Acquisition Proposal, the Company shall, in each case, deliver to Parent an additional Superior Proposal Notice and a new Notice Period shall commence, except that the five (5) Business Day notice period referred to in Section 5.2(c)(iv) above shall instead be a period of three (3) Business Days (it being understood and agreed that in no event shall any such additional three (3) Business Day period be deemed to shorten the initial five (5) Business Day period), during which time the Company shall be required to comply with the requirements of this Section 5.2(c) anew with respect to such additional notice.
<omitted>
Section 7.1. Termination. This Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the Closing (notwithstanding any approval of this Agreement by the stockholders of the Company, except as otherwise provided below): <omitted> (g) by the Company, at any time prior to obtaining the Company Stockholder Approval, upon prior written notice to Parent, in order to accept a Superior Proposal and, immediately following such termination, enter into a binding and definitive written Alternative Acquisition Agreement with respect to such Superior Proposal; provided that the Company and the Company Board shall have complied in all material respects with the requirements set forth in Section 5.2 in connection with any actions leading to such Superior Proposal; (Page 27) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_80 | Section 5.2. No Solicitation. <omitted> (c) <omitted> the Company Board may <omitted> cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal <omitted> only if: <omitted> such Acquisition Proposal constitutes a Superior Proposal and <omitted> (iii)the Company delivers to Parent <omitted> notice (the “ Superior Proposal Notice”) stating that the Company Board intends to take such action
<omitted>
For purposes of this Section 5.2(c), in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Acquisition Proposal, the Company shall, in each case, deliver to Parent an additional Superior Proposal Notice and a new Notice Period shall commence, except that the five (5) Business Day notice period referred to in Section 5.2(c)(iv) above shall instead be a period of three (3) Business Days (it being understood and agreed that in no event shall any such additional three (3) Business Day period be deemed to shorten the initial five (5) Business Day period), during which time the Company shall be required to comply with the requirements of this Section 5.2(c) anew with respect to such additional notice.
<omitted>
Section 7.1.Termination. This Agreement may be terminated <omitted>
(g) by the Company <omitted> upon <omitted> notice to Parent, in order to accept a Superior Proposal and <omitted> enter into a binding and definitive written Alternative Acquisition Agreement with respect to such Superior Proposal; provided that the Company and the Company Board shall have complied in all material respects with the requirements set forth in Section 5.2 in connection with any actions leading to such Superior Proposal; (Page 27) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_88 | Section 5.4 No Company Solicitation.
<omitted>
(e) Notwithstanding anything in this Section 5.4 to the contrary, at any time before the Company Stockholder Approval is obtained, the Company Board may make a Company Change of Recommendation or authorize the Company to terminate this Agreement under Section 7.1(d) (i) if: (i) the Company has received a written Alternative Acquisition Proposal that did not result from a breach of this Section 5.4;
46
(ii) the Company Board determines in good faith (after consultation with outside legal counsel and a nationally recognized financial advisor) that such Alternative Acquisition Proposal is a Superior Acquisition Proposal and the failure to make a Company Change of Recommendation or authorize the Company to terminate this Agreement under Section 7.1(d)(i) in response to such Alternative Acquisition Proposal would be inconsistent with the Company Board’s fiduciary duties under applicable Law; (iii) the Company Board provides to Parent a prior written notice that the Company Board intends to make a Company Change of Recommendation or authorize the Company to terminate this Agreement under Section 7.1(d)(i) (a “Company Recommendation Change Notice”) in response to such Alternative Acquisition Proposal, which Company Recommendation Change Notice shall identify the Person making such Alternative Acquisition Proposal, attach a copy of any Alternative Acquisition Agreement and any proposed written definitive agreement, or the latest draft thereof, relating to such Alternative Acquisition Proposal and summarize in reasonable detail any material terms and conditions of such Alternative Acquisition Proposal that are not reflected in such copies; (iv) if requested by Parent, during the five (5) Business Day period after delivery of the Company Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives, which negotiation may be on a non-exclusive basis, related to revisions to this Agreement or the transactions contemplated hereby; and (v) at the end of such five (5) Business Day period and taking into account any changes to the terms hereof proposed by Parent in writing (provided that, if Parent has proposed any changes to the terms hereof or the transactions contemplated hereby and there is any subsequent amendment to any material term of such Alternative Acquisition Proposal, the Company Board shall provide a new Company Recommendation Change Notice (including all required information and documents as set forth in Section 5.4(e)(iii)) and an additional two (2) Business Day period from the date of such notice shall apply), the Company Board determines in good faith (after consultation with outside legal counsel and a nationally recognized financial advisor) that such Alternative Acquisition Proposal continues to be a Superior Acquisition Proposal and that the failure to make such a Company Change of Recommendation in response to such Alternative Acquisition Proposal or authorize the Company to terminate this Agreement under Section 7.1(d)(i) would be inconsistent with the Company Board’s fiduciary duties under applicable Law. (Page 23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_88 | Section 5.4 No Company Solicitation.
<omitted>
(e) <omitted> the Company Board may <omitted> authorize the Company to terminate this Agreement under Section 7.1(d) (i) if:
<omitted>
(ii) the Company Board determines in good faith <omitted> that such Alternative Acquisition Proposal is a Superior Acquisition Proposal <omitted>
(iii) the Company Board provides to Parent a prior written notice that the Company Board intends to make a Company Change of Recommendation or authorize the Company to terminate this Agreement under Section 7.1(d)(i) (a “Company Recommendation Change Notice”) in response to such Alternative Acquisition Proposal <omitted>
(v) <omitted> (provided that, if Parent has proposed any changes to the terms hereof or the transactions contemplated hereby and there is any subsequent amendment to any material term of such Alternative Acquisition Proposal, the Company Board shall provide a new Company Recommendation Change Notice <omitted> and an additional two (2) Business Day period from the date of such notice shall apply) (Page 23) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_85 | SECTION 5.3 No Solicitation by the Company; Company Recommendation. <omitted>
(d) <omitted>
provided, however, that the Company Board and the Company Special Committee shall not, and shall cause the Company not to, make a Company Adverse Recommendation Change in connection with a Company Superior Proposal unless (I) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action (which notice shall reasonably describe the material terms of the Company Superior Proposal or attach the agreement and all material related documentation providing for such Company Superior Proposal), (II) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal, (III) following the end of such notice period, the Company Board or the Company Special Committee shall have considered in good faith any such binding offer from Parent, and shall have determined that the Company Superior Proposal would continue to constitute a Company Superior Proposal if the revisions proposed in such binding offer were to be given effect and (IV) in the event of any material change to the material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (I) above and the notice period shall have recommenced, except that the notice period shall be at least two (2) Business Days (rather than the four (4) Business Days otherwise contemplated by clause (I) above); (Page 47) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_85 | SECTION 5.3 No Solicitation by the Company; Company Recommendation. <omitted>
(d) <omitted>
the Company Board and the Company Special Committee shall not, and shall cause the Company not to, make a Company Adverse Recommendation Change in connection with a Company Superior Proposal unless <omitted> (IV) in the event of any material change to the material terms of such Company Superior Proposal, <omitted> the notice period shall have recommenced, except that the notice period shall be at least two (2) Business Days (Page 47) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_86 | Section 5.04 Company Recommendation. <omitted>
(b) Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt of a bona fide, written Competing Proposal received after the date hereof that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation (and, if so desired by the Company Board (or any duly authorized committee thereof) terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Competing Proposal), only if: <omitted>
(ii) the Company provides Parent written notice at least four (4) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal and include a copy of all definitive agreements to effect such Superior Proposal to which the Company or any Company Subsidiary would be a party and any financing commitments to which the person making such Competing Proposal would be a party (subject to customary redactions to debt financing commitments) (it being agreed that neither the delivery of the Notice of Change of Recommendation by the Company nor the public disclosure thereof shall constitute a Change of Company Recommendation); (iii) if requested by Parent, prior to effecting such Change of Company Recommendation, the Company shall, and shall direct its applicable Representatives to, negotiate with Parent in good faith during the four (4) Business Days commencing on the date of delivery of the Notice of Change of Recommendation regarding adjustments in the terms and conditions of this Agreement proposed by Parent in writing; 39 (iv) no earlier than the end of the four (4) Business Day period beginning after the delivery of the Notice of Change of Recommendation, the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any proposed amendments to the terms and conditions of this Agreement proposed by Parent in writing during such four (4) Business Day period, that (A) failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount or form of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days). (Page 19) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_86 | Section 5.04 Company Recommendation. <omitted>
(b) Superior Proposal. <omitted> the Company Board (or any duly authorized committee thereof) may, in response to the receipt of a <omitted> Competing Proposal <omitted> that did not result from a breach of Section 5.03(a) <omitted> terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Competing Proposal), only if: <omitted>
<omitted> provided, that any change to the financial terms (including any change to the amount or form of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days). (Page 19) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_96 | Section 5.2 Company Acquisition Proposals.
<omitted>
(e) Notwithstanding Section 5.2(d), and subject to Section 5.2(f), at any time prior to obtaining the Company Stockholder Approval, the Company Board may in response to a Company Superior Proposal received on or after the date hereof that has not been withdrawn or abandoned and that did not result from a material breach of this Section 5.2, make a Company Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) (including by concurrently paying the Termination Fee) and concurrently enter into a binding definitive agreement to effect such Company Superior Proposal. Neither the Company Board nor any committee thereof shall make a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) or cause the Company to enter into a binding definitive agreement to effect such Company Superior Proposal unless the Company has first complied with the provisions of Section 5.2(f) and, after so complying, the Company Board determines in good faith that such Company Acquisition Proposal continues to constitute a Company Superior Proposal.
(f) The Company Board shall not take any action set forth in Section 5.2(e) unless the Company has first (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) advising Parent that the Company has received a Company Superior Proposal, specifying the material terms and conditions of such Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing copies of any agreements intended to effect such Company Superior Proposal and that the Company Board has made the determination that the Company Acquisition Proposal is a Company Superior Proposal, (ii) caused the Company and its Representatives to be available to negotiate, during the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), in good faith with Parent to enable Parent to make a counter offer or propose to amend the terms of this Agreement (to the extent Parent wishes to do so) so that such Company Acquisition Proposal no longer constitutes a Company Superior Proposal, and (iii) after complying with the immediately foregoing clauses (i) and (ii), reaffirmed the Company Board’s determination required under Section 5.2(e) in light of any counteroffer or proposed amendment to the terms of this Agreement; provided, however, if, during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material (it being understood and agreed that any change to consideration with respect to such proposal is material), the Company shall deliver a new Notice of Company Superior Proposal to Parent and shall comply with the requirements of this Section 5.2(f) with respect to such new Notice of Company Superior Proposal, except that any subsequent Company Superior Proposal Notice Period shall be two (2) Business Days following Parent’s receipt of such new Notice of Company Superior Proposal. For the avoidance of doubt, delivery and receipt of a Notice of Company Superior Proposal shall not constitute a Company Adverse Recommendation Change.
<omitted>
Section 7.1 Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, as follows (with any termination by Parent also being an effective termination by Merger Sub):
<omitted>
(d) by the Company:
<omitted>
(ii) prior to obtaining the Company Stockholder Approval, in order to enter into a definitive agreement to effect a Company Superior Proposal, if the Company has complied with Section 5.2 (including Section 5.2(f)) in all material respects and enters into such definitive agreement concurrently with such termination and pays the Termination Fee in accordance with the procedures and within the time periods set forth in Section 7.3(a). (Page 66) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_96 | Section 5.2 Company Acquisition Proposals.
<omitted>
(e) Notwithstanding Section 5.2(d), and subject to Section 5.2(f), at any time prior to obtaining the Company Stockholder Approval, the Company Board may in response to a Company Superior Proposal <omitted> cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii)
<omitted>
(f) The Company Board shall not take any action set forth in Section 5.2(e) unless the Company has first <omitted> (ii) caused the Company and its Representatives to be available to negotiate, during the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), <omitted> and (iii) <omitted> reaffirmed the Company Board’s determination required under Section 5.2(e) in light of any counteroffer or proposed amendment to the terms of this Agreement; provided, however, if, during the Company Superior Proposal Notice Period any revisions are made to a Company Acquisition Proposal and such revisions are material <omitted> the Company shall deliver a new Notice of Company Superior Proposal to Parent <omitted> except that any subsequent Company Superior Proposal Notice Period shall be two (2) Business Days following Parent’s receipt of such new Notice of Company Superior Proposal.
<omitted>
Section 7.1 Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, as follows (with any termination by Parent also being an effective termination by Merger Sub):
<omitted>
(d) by the Company:
<omitted>
(ii) prior to obtaining the Company Stockholder Approval, in order to enter into a definitive agreement to effect a Company Superior Proposal, if the Company has complied with Section 5.2 (including Section 5.2(f)) in all material respects (Page 66) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_97 | Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. Further, the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing at least five Business Days before taking that action, of its intention to do so, attaching (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Superior Proposal, or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, and (ii) Parent does not make, within five Business Days after its receipt of that written notification, a binding offer that (A) in the case of any Adverse Recommendation Change to be made following receipt of a Superior Proposal, is determined by the Company Board to be at least as favorable to the stockholders of the Company as such Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company and a new period under this Section 6.03(d), provided that such period for any amendments shall be three Business Days instead of five Business Days) or (B) in the case of an Adverse Recommendation Change to be made pursuant to an Intervening Event, obviates, in the reasonable judgment of the Company Board, the need for such Adverse Recommendation Change. (Page 58) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_97 | Section 6.03. No Solicitation. <omitted>
(d) “Last Look”. <omitted> the Company Board shall not make an Adverse Recommendation Change unless (i) the Company promptly notifies Parent, in writing <omitted> (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, <omitted> (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company and a new period under this Section 6.03(d), provided that such period for any amendments shall be three Business Days instead of five Business Days) (Page 58) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_95 | 6.3 No Solicitation by NIC. <omitted> (d) Notwithstanding anything in this Section 6.3 to the contrary, but subject to Section 6.3(e), at any time prior to the NIC StockholderApproval being obtained, the NIC Board of Directors may <omitted> (ii) make a Change of Recommendation (of the type contemplated by Section 6.3(a)(iv) or Section 6.3(a)(v)) and cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h)in order to enter into a definitive agreement providing for an unsolicited Acquisition Proposal received after the date of this Agreement (which, for the avoidance of doubt, did not result from a breach of Section 6.3(a)(i) or (ii)and such Acquisition Proposal is not withdrawn) if the NIC Board of Directors determines in good faith after consultation with NIC’s outside legal counsel and financial advisors that such Acquisition Proposal constitutes a Superior Proposal; provided that notwithstanding anything to the contrary herein, neither NIC nor any NIC Subsidiary shall enter into any NIC Acquisition Agreement unless thisAgreement has been terminated in accordance with Section 8.1. <omitted> (e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action and specifying the material terms and conditions of the Acquisition Proposal, including a copy of any proposed definitive documentation, and, during such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day), NIC shall cause its executive officers and direct its other Representatives to negotiate in good faith (to the extent Tyler desires to negotiate) any proposal by Tyler to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal, and at the end of such four-Business Day period (which period shall expire at 11:59 p.m., Central Time, on the fourth Business Day) the NIC Board of Directors again makes the determination under Section 6.3(d)(ii) (after in good faith taking into account the amendments to this Agreement proposed by Tyler). With respect to Section 6.3(e)(ii), i f there are any material amendments, revisions, or changes to the material terms of any such Superior Proposal (including any revision to the amount, form, or mix of consideration NIC Stockholders would receive as a result of the Superior Proposal), NIC shall notify Tyler of each such amendment, revision, or change in compliance with Section 6.3(c) and the applicable four-Business Day period shall be extended until at least two Business Days after the time that Tyler receives notification from NIC of each such revision, and the NIC Board of Directors shall not take any such action permitted under Section 6.3(d)(ii) prior to the end of any such period (which period shall expire at 11:59 p.m., Central Time, on the applicable day) as so extended in accordance with the terms of this Section 6.3(e). (Page 37) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_95 | 6.3 No Solicitation by NIC. <omitted> (d) <omitted> subject to Section 6.3(e), <omitted> the NIC Board of Directors may <omitted> cause NIC to terminate this Agreement pursuant to and in accordance with Section 8.1(h) <omitted>
(e) Prior to NIC taking any action permitted <omitted> (ii) under Section 6.3(d)(ii), NIC shall provide Tyler with four-Business Days’ prior written notice advising Tyler that the NIC Board of Directors intends to take such action <omitted> With respect to Section 6.3(e)(ii), i f there are any material amendments, revisions, or changes to the material terms of any such Superior Proposal (including any revision to the amount, form, or mix of consideration NIC Stockholders would receive as a result of the Superior Proposal), NIC shall notify Tyler of each such amendment, revision, or change in compliance with Section 6.3(c) and the applicable four-Business Day period shall be extended until at least two Business Days after the time that Tyler receives notification from NIC of each such revision, and the NIC Board of Directors shall not take any such action permitted under Section 6.3(d)(ii) prior to the end of any such period (which period shall expire at 11:59 p.m., Central Time, on the applicable day) as so extended in accordance with the terms of this Section 6.3(e). (Page 37) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_100 | 5.3. No Solicitation.
<omitted>
(ii) if the Company has received a bona fide written Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal or (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if: (1) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law; and (2) (i) the Company has provided prior written notice to Parent at least three Business Days in advance (the “Notice Period”) to the effect that the Company Board has (A) received a bona fide written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii), which notice will describe the basis for such Company Board Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Acquisition Proposal, the material terms and conditions of such Acquisition Proposal and copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Notice Period, have (1) negotiated with Parent and its Representatives in good faith (to the extent that Parent requests in writing to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal, and (2) provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation), it being understood that (a) in the event of any material revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii)(2) with respect to such new written notice (with the “Notice Period” in respect of such new -64-
written notice being two Business Days, provided that such new notice shall in no event shorten the original three Business Day notice period); and (b) the Company Board, at the end of the Notice Period (after consultation with its financial advisor and outside legal counsel), must have in good faith reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal. (Pages 68-69) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_100 | 5.3. No Solicitation.
<omitted>
(ii) if the Company has received a bona fide written Acquisition Proposal that <omitted> is a Superior Proposal, then the Company Board may <omitted> (B) authorize the Company to terminate this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, <omitted> if: <omitted>
(ii) prior to effecting such <omitted> termination, the Company and its Representatives, during the Notice Period, have (1) negotiated with Parent <omitted> to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal, and (2) provided Parent and its Representatives with an opportunity to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto <omitted>
it being understood that (a) in the event of any material revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent <omitted> (with the “Notice Period” in respect of such new -64- written notice being two Business Days (Pages 68-69) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_101 | Section 5.2. Go-Shop; Acquisition Proposals<omitted> (c) <omitted> (iii) following the end of such four (4) Business Day period, the Company Board shall have determined in good faith, after consultation with its outside legal counsel and, with respect to clause (A) below, its financial advisor, taking into account any changes to this Agreement proposed in writing by Parent in response to the Notice of Change of Recommendation/Termination, that (A) the Superior Proposal giving rise to the Notice of Change of Recommendation/Termination continues to be a Superior Proposal or (B) in the case of an Intervening Event, the failure of the Company Board to effect a Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law. 40
Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation/Termination and the Company shall be required to comply again with the requirements of clauses (i)-(iii) above; provided, however, that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period following receipt by Parent of any such new Notice of Change of Recommendation/Termination (it being understood that no such new Notice of Change of Recommendation/Termination shall reduce the initial four (4) Business Day period). (Pages 48-49) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_101 | Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation/Termination and the Company shall be required to comply again with the requirements of clauses (i)-(iii) above; provided, however, that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period following receipt by Parent of any such new Notice of Change of Recommendation/Termination (it being understood that no such new Notice of Change of Recommendation/Termination shall reduce the initial four (4) Business Day period). (Pages 48-49) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_107 | SECTION 7.8. No Solicitation. <omitted> (d) Notwithstanding anything in this Agreement to the contrary, at any time during the Pre-Closing Period, the Company Board may effect a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement, in each case if, and only if, (i) in the case of a termination of this Agreement to enter into a Specified Agreement, the Company is not in breach of thisSection 7.8in connection with the Superior Proposal or Acquisition Proposal that was a precursor to the Specified Agreement, (ii) theCompany Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make the CompanyAdverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement would be inconsistent with the fiduciary duties of the Company Board under applicable Law, (iii) the Company has given Parent written notice of the Company Board’s intention to make a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement not earlier than 11:59p.m. New York time on the fifth Business Day after Parent receives such written notice and (iv) if not in connection with an Intervening Event pursuant to Section 7.8(e), the decision to make a Company Adverse Recommendation Change is in connection with an Acquisition Proposal or with the Company’s intent to terminate this Agreement to enter into a Specified Agreement, and the Company shall have complied with clauses (1) through (5), as follows: (1) prior to giving effect to clauses (2) through (5), the Company Board shall have determined that suchAcquisition Proposal is a Superior Proposal, (2) the Company shall have made available to Parent orally and in writing the material terms and conditions of such Acquisition Proposal and copies of all written communications (and, if oral, a summary of the material terms of such communications) relating to such Acquisition Proposal in accordance with Section 7.8(b), (3) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent that Parent desires to negotiate, during the five BusinessDay period provided in the foregoing clause (iii) of this Section 7.8(d) with respect to such proposed revisions to this Agreement or other proposals made by Parent, if any, so that the Acquisition Proposal would no longer constitute a Superior Proposal, (4) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, the Company Board shall have determined in good faith that suchAcquisition Proposal remains a Superior Proposal, and, after consultation with its outside legal counsel, that the failure to make the CompanyAdverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement would be inconsistent with the fiduciary duties of the Company Board under applicable Law and (5) if the Company intends to terminate 72
this Agreement to enter into a Specified Agreement, the Company shall have complied with Section 9.1(d)(i). For clarity, the provisions of this Section 7.8(d) shall also apply to any amendment to the financial terms or any other material amendment to any Acquisition Proposal (except that any reference to five Business Days shall instead be three Business Days) or any successive Acquisition Proposals. <omitted> SECTION 9.1. Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Effective Time: (d) by the Company by written notice to Parent at any time prior to the Acceptance Time: (i) in order to accept a Superior Proposal and enter into the Specified Agreement relating to such Superior Proposal, if (1) such Superior Proposal shall not have resulted from any breach of Section 7.8 with respect to such Superior Proposal and any Acquisition Proposal that was a precursor thereto, (2) the Company Board, after satisfying all of the requirements set forth in Section 7.8(d), shall have authorized the Company to enter into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Superior Proposal (a “Specified Agreement”) and (3) the Company shall have paid the Termination Fee, and have entered into the Specified Agreement, concurrently with the termination of this Agreement pursuant to this Section 9.1(d)(i); (Page 84) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
abridged | contract_107 | SECTION 7.8. No Solicitation. <omitted> (d) <omitted> the Company Board may <omitted> terminate this Agreement <omitted> and <omitted> complied with clauses (1) through (5) <omitted> the Company Board shall have determined that such Acquisition Proposal is a Superior Proposal, (2) the Company shall have made available to Parent orally and in writing the material terms and conditions of such Acquisition Proposal and copies of all written communications <omitted> (except that any reference to five Business Days shall instead be three Business Days) or any successive Acquisition Proposals. <omitted> SECTION 9.1. Termination. This Agreement may be terminated <omitted> (d) by the Company <omitted> (i) in order to accept a Superior Proposal and enter into the Specified Agreement <omitted> after satisfying all of the requirements set forth in Section 7.8(d) (Page 84) | Continuous matching right | 0 | Number of additional matching rights periods for modifications (FTR) | <NONE> | Agreement provides for matching rights in connection with FTR | 103 | Deal Protection and Related Provisions |
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