Common use of Adverse Recommendation Change or Acquisition Agreement Clause in Contracts

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.05, the Giga Board shall not effect a Giga Adverse Recommendation Change; or enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any time: (i) prior to the receipt of the Requisite Giga Vote, the Giga Board may effect a Giga Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a breach of this Section 6.05, if (A) Giga promptly notifies BitNile, in writing, at least three Business Days (the “Superior Proposal Notice Period”) before making a Giga Adverse Recommendation Change, as applicable, or entering into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga has received a Takeover Proposal that the Giga Board (or a committee thereof) intends to declare a Superior Proposal and that it intends to effect a Giga Adverse Recommendation Change, and/or Giga intends to enter into an Acquisition Agreement, (B) Giga specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement and any related documents including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal, (C) Giga shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNile, in their discretion, propose to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party notifies the other party of any such material revision (it being understood that there may be multiple extensions)), and (D) the Giga Board (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party during the Superior Proposal Notice Period in the terms and conditions of this Agreement).

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.058.07, the Giga Red Cat Board shall not effect a Giga Red Cat Adverse Recommendation Change; or enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any time: (i) prior to the receipt of the Requisite Giga Red Cat Vote, the Giga Red Cat Board may effect a Giga Red Cat Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a breach of this Section 6.058.07, if (A) Giga Red Cat promptly notifies BitNileUnusual, in writing, at least three five Business Days (the “Superior Proposal Notice Period”) before making a Giga Red Cat Adverse Recommendation Change, as applicable, or entering into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga Red Cat has received a Takeover Proposal that the Giga Red Cat Board (or a committee thereof) Red Cat Board Committee intends to declare a Superior Proposal and that it intends to effect a Giga Red Cat Adverse Recommendation Change, and/or Giga Red Cat intends to enter into an Acquisition Agreement, (B) Giga Red Cat specifies the identity of the party to Unusual whom is making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party Party in connection with the Superior Proposal, (C) Giga Red Cat shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile Unusual in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNileUnusual, in their its discretion, propose proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party Red Cat notifies the other party Unusual of any such material revision (it being understood that there may be multiple extensions)), and (D) the Giga Red Cat Board (or a committee thereof) Red Cat Board Committee determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party Unusual during the Superior Proposal Notice Period in the terms and conditions of this Agreement)) and that the failure to take such action would cause Red Cat Board to be in breach of its fiduciary duties under applicable Law.

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.055.04, neither the Giga Company Board shall not effect a Giga Company Adverse Recommendation Change, nor shall the Parent Board effect a Parent Adverse Recommendation Change; or or, in either case, enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any timetime prior to the receipt of: (i) prior to the receipt of the Requisite Giga Company Vote, the Giga Company Board may effect a Giga Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a material breach of this Section 6.055.04; and (ii) the Requisite Parent Vote, the Parent Board may effect a Parent Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a material breach of this Section 5.04, if (A) Giga such party promptly notifies BitNilethe other party, in writing, at least three five Business Days (the “Superior Proposal Notice Period”) before making a Giga Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable, or entering into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga such party has received a Takeover Proposal that the Giga Board such party’s board of directors (or a committee thereof) intends to declare a Superior Proposal and that it intends to effect a Giga Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable, and/or Giga such party intends to enter into an Acquisition Agreement, (B) Giga such party specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal, (C) Giga such party shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile other party in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNilethe other party, in their its discretion, propose proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party notifies the other party of any such material revision (it being understood that there may be multiple extensions)), and (D) the Giga Board such party’s board of directors (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party during the Superior Proposal Notice Period in the terms and conditions of this Agreement)) and that the failure to take such action would cause its board to be in breach of its fiduciary duties under applicable Law.

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.055.04, neither the Giga Company Board shall not effect a Giga Company Adverse Recommendation Change, nor shall the Parent Board effect a Parent Adverse Recommendation Change; or or, in either case, enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any timetime prior to the receipt of: (i) prior to the receipt of the Requisite Giga Company Vote, the Giga Company Board may effect a Giga Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a material breach of this Section 6.055.04; and (ii) the Requisite Parent Vote, the Parent Board may effect a Parent Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a material breach of this Section 5.04, in each case, if (A) Giga such party promptly notifies BitNilethe other party, in writing, at least three five Business Days (the “Superior Proposal Notice Period”) before making a Giga Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable, or entering into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga such party has received a Takeover Proposal that the Giga Board such party’s board of directors (or a committee thereof) intends to declare a Superior Proposal and that it intends to effect a Giga Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable, and/or Giga such party intends to enter into an Acquisition Agreement, (B) Giga subject to the non-recommending party hereto approving and entering into a confidentiality agreement satisfactory to the recommending party hereto (such approval and entry not to be unreasonably withheld, conditioned or delayed), such party specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal, (C) Giga such party shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile other party in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNilethe other party, in their its discretion, propose proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party notifies the other party of any such material revision (it being understood that there may be multiple extensions)), and (D) the Giga Board such party’s board of directors (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party during the Superior Proposal Notice Period in the terms and conditions of this Agreement)) and that the failure to take such action would reasonably be expected to cause its board to be in breach of its fiduciary duties under applicable Law.

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.055.04, the Giga Company Board shall not effect a Giga Company Adverse Recommendation Change; Change or enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any time: (i) time prior to the receipt of the Requisite Giga Company Vote, the Giga Company Board may effect a Giga Company Adverse Recommendation Change or terminate this Agreement to enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a breach of this Section 6.055.04, if (A) Giga the Company promptly notifies BitNilethe Parent, in writing, at least three four (4) Business Days (the “Superior Proposal Notice Period”) before making a Giga Company Adverse Recommendation Change, as applicable, Change or entering terminating this Agreement to enter into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga the Company has received a Takeover Proposal that the Giga Board Company’s board of directors (or a committee thereof) intends to declare a Superior Proposal and that it intends to effect a Giga Company Adverse Recommendation Change, and/or Giga Change or intends to terminate this Agreement to enter into an Acquisition Agreement, (B) Giga the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party in connection with the Superior Proposal, (C) Giga the Company shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNilethe Parent, in their its discretion, propose proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three two (32) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party the Company notifies the other party Parent of any such material revision (it being understood that there may only be multiple two such extensions)), and (D) the Giga Board Company’s board of directors (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement)) and that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law.

Adverse Recommendation Change or Acquisition Agreement. Except as expressly permitted by this Section 6.056.4, the Giga Company Board shall not effect a Giga Company Adverse Recommendation Change; Change or enter into (or permit any of its respective Subsidiaries to enter into) an Acquisition Agreement. Notwithstanding the foregoing, at any time: (i) time prior to the receipt of the Requisite Giga Company Vote, the Giga Company Board may effect a Giga Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Acquisition Agreement that did not result from a material breach of this Section 6.056.4, if if: (Ai) Giga such Party promptly notifies BitNilethe other Party, in writing, at least three five Business Days (the “Superior Proposal Notice Period”) before making a Giga Company Adverse Recommendation Change, as applicable, Change or entering into (or causing one of its Subsidiaries to enter into) an Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that Giga such Party has received a Takeover Proposal that the Giga Board such Party’s board of directors (or a committee thereof) intends to declare a Superior Proposal and that it intends to effect a Giga Company Adverse Recommendation Change, Change and/or Giga such Party intends to enter into an Acquisition Agreement, ; (Bii) Giga such Party specifies the identity of the party Party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) and any related documents including financing documents, to the extent provided by the relevant party Party in connection with the Superior Proposal, ; (Ciii) Giga such Party shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with the GWW and BitNile other Party in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if GWW and BitNilethe other Party, in their its discretion, propose proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price or financing, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Superior Proposal Notice Period subsequent to the time such party Party notifies the other party Party of any such material revision (it being understood that there may be multiple extensions)), and ; and (Div) the Giga Board such Party’s board of directors (or a committee thereof) determines in good faith, after consulting with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by the other party Party during the Superior Proposal Notice Period in the terms and conditions of this Agreement)) and that the failure to take such action would reasonably be expected to cause its board to be in breach of its fiduciary duties under applicable Law.