Alternative Transactions. Notwithstanding anything to the contrary in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or provide any information to, any person or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel and independent financial advisors that (i) it has the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering and the Concurrent Private Placement but in no event later than February 1, 2011, and (ii) such Substitute Transaction is more favorable to the holders of Common Stock (excluding benefits arising to the Backstop Parties by virtue of the Backstop Commitment) than the Rights Offering and the Concurrent Private Placement (taking into account all the terms and conditions of such Substitute Transaction that the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Transaction, together with reasonable details concerning the terms and conditions of such Substitute Transaction. After such three (3) business day period, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) the Substitute Transaction continues to meet the requirements of clause (ii) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated amon...
Alternative Transactions. As of the date hereof, the Company is not pursuing, or in discussions or negotiations regarding, any solicitation, offer, or proposal from any Person concerning any actual or proposed Alternative Transaction and, as applicable, has terminated any existing discussions or negotiations regarding any actual or proposed Alternative Transaction.
Alternative Transactions. From the date hereof through the earlier of (x) termination of this Agreement in accordance with Article XII and (y) the Closing, other than in connection with the transactions contemplated hereby, neither the Group Parties, on the one hand, nor the Acquiror or the Merger Subs, on the other hand, shall, and such Persons shall cause each of their respective officers, directors, Affiliates, managers, consultants, employees, representatives (including investment bankers, attorneys and accountants) and agents not to, directly or indirectly, (i) encourage, solicit, initiate, engage or participate in negotiations with any Person concerning, or make any offers or proposals related to, any Alternative Transaction, (ii) take any other action intended or designed to facilitate the efforts of any Person relating to a possible Alternative Transaction, (iii) enter into, engage in or continue any discussions or negotiations with respect to an Alternative Transaction with, or provide any non-public information, data or access to employees to, any Person that has made, or that is considering making, a proposal with respect to an Alternative Transaction or (iv) approve, recommend or enter into any Alternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, the term “Alternative Transaction” shall mean any of the following transactions involving the Group Parties, the Acquiror, or the Merger Subs (other than the transactions contemplated by this Agreement): (1) any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, consolidation, liquidation or dissolution or other similar transaction, or (2) any sale, lease, exchange, transfer or other disposition of a material portion of the assets of such Person or any class or series of the capital stock or other equity interests of the Group Parties or the Acquiror in a single transaction or series of transactions. In the event that there is an unsolicited proposal for, or an indication of a serious interest in entering into, an Alternative Transaction, communicated in writing to the Group Parties or the Acquiror or any of their respective representatives or agents (each, an “Alternative Proposal”), such party shall as promptly as practicable (and in any event within one (1) Business Day after receipt) advise the other parties to this Agreement orally and in writing of such Alternative Proposal and the material terms and conditions of any such...
Alternative Transactions. 11.1 In the event that the Company withdraws from the Offering in order to complete an Alternative Transaction and such transaction is completed within 12 months of the withdrawal from the Offering, the Company shall pay to the Agent promptly upon closing of the Alternative Transaction a fee equal to the maximum amount of fees otherwise payable under this Agreement calculated on the basis of the maximum offering of the Shares proposed hereunder, including the Over‐Allotment Option.
Alternative Transactions. 5.3.1 Seller shall (and shall cause its officers, directors, employees, agents, advisors, Affiliates and other representatives (collectively, the “Seller Representatives”) to) immediately cease and cause to be terminated any discussions, negotiations or encouragements with any Person conducted heretofore with respect to an Acquisition Proposal and shall immediately request to be returned or immediately destroyed all information provided heretofore by or on behalf of Seller to such Person. Seller shall not, and shall cause the Seller Representatives not to, directly or indirectly (A) initiate, facilitate, solicit, encourage (including, without limitation, by way of furnishing non-public information) or accept any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to result in, an Acquisition Proposal or (B) engage in, continue or otherwise participate in any discussions, communications or negotiations regarding an Acquisition Proposal. Neither Seller nor any of its Subsidiaries shall grant any waiver, amendment or release under any standstill agreement or confidentiality agreement.
5.3.2 Seller shall promptly (and in any event within twenty-four (24) hours after receipt by or notification from any Seller Representative) notify Buyer of the receipt (or notification) of any Acquisition Proposal or any inquiries relating to an Acquisition Proposal or any request for information from, or any negotiations sought to be initiated or continued with, either Seller or the Seller Representatives concerning an Acquisition Proposal. Seller’s notice shall include (i) a copy of any written Acquisition Proposal and any other documents provided to Seller with respect to such Acquisition Proposal or (ii) in respect of any Acquisition Proposal, any inquiry relating to an Acquisition Proposal or any request for information relating to an Acquisition Proposal not made in writing, a written summary of the material terms of such Acquisition Proposal, inquiry or request, including the identity of the Person or group of Persons making the Acquisition Proposal, inquiry or request. Seller shall keep Buyer informed on a current basis of the status, discussions, negotiations, or developments regarding any Acquisition Proposal, inquiry or request. In addition, Seller shall notify Buyer within one (1) Business Day of receipt of any of the following: (i) any written indication by any Person that could reasonably be expected to res...
Alternative Transactions. Notwithstanding anything to the contrary contained herein, (a) no Holder shall be entitled to any piggyback right or to participate as a Demand Eligible Holder under Section 2 in connection with an Alternative Transaction (including Alternative Transactions off of a Shelf Registration Statement or an Automatic Shelf Registration Statement, or in connection with the registration of Registrable Securities under an Automatic Shelf Registration Statement for purposes of effectuating an Alternative Transaction; provided, that, any registration with respect to an Alternative Transaction shall not constitute a Demand Registration for purposes of determining the number of Demand Registrations effected by the Company under Section 2(b)(ii) above); and (b) no Holder shall be permitted to request or participate in an underwritten offering (including an Underwritten Shelf Takedown) that is an Alternative Transaction.
Alternative Transactions. From the date hereof through the earlier of (x) termination of this Agreement in accordance with ARTICLE IX and (y) the Effective Time, other than in connection with the transactions contemplated hereby, neither the Company, on the one hand, nor the Parent Parties, on the other hand, shall, and such Persons shall cause each of their respective officers, directors, Affiliates, managers, consultants, employees, representatives (including investment bankers, attorneys and accountants) and agents not to, directly or indirectly, (a) solicit, initiate, engage or participate in, or knowingly encourage or facilitate, negotiations with any Person concerning, or make any offers or proposals related to, any Alternative Transaction, (b) enter into, engage in or continue any discussions or negotiations with respect to an Alternative Transaction with, or provide any non-public information, data or access to employees to, any Person that has made, or to the Company’s or Parent’s knowledge, as applicable, is considering making, a proposal with respect to an Alternative Transaction or (c) approve, recommend or enter into any Alternative Transaction or any Contract related to any Alternative Transaction. For purposes of this Agreement, the term “Alternative Transaction” shall mean (other than the transactions contemplated by this Agreement) (i) with respect to the Company: (A) any transaction or series of related transactions under which any Person(s), directly or indirectly, acquires or otherwise purchases the Company, including through merger, consolidation, share exchange, business combination, amalgamation, recapitalization, other similar transaction, (B) any sale, exchange, transfer or other disposition of 25% or more of the total assets of the Company or any class or series of the share capital or capital stock or other equity interests of the Company in a single transaction or series of related transactions that, if consummated, would result in any other Person owning 25% or more of any class of equity or voting securities of the Company; or (ii) with respect to the Parent Parties, any “Business Combination” as such term is defined in Parent’s Organizational Documents.
Alternative Transactions. (a) From the date hereof until the earlier of the Closing and the termination of this Agreement (the "Exclusivity Period"), the Company shall not permit any of its Subsidiaries or Affiliates to, and shall not authorize or permit any of their Representatives to, directly or indirectly,
(i) solicit or initiate, or encourage the submission of, any Proposal,
(ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Proposal or Alternative Transaction, other than a transaction with Buyer, or
(iii) authorize, engage in, or enter into any agreement or understanding with respect to, any Alternative Transaction; provided however, to the extent required by the fiduciary obligations of the Board of Directors, as determined in good faith by the Board of Directors based on the advice of outside counsel, the Company may participate in such discussions or negotiations or furnish such information in response to an unsolicited Proposal with respect to, or authorize, engage in or enter into any agreement or understanding with respect to, a Business Combination; and provided further, that if the Company's Board of Directors, as determined in good faith by the Board of Directors based on the advice of outside counsel, deems it to be in the best interests of its Shareholders, the Company, its officers and its Directors may notify any party that initiates discussions regarding a potential Alternative Transaction, that it is engaged in the transactions contemplated by this Agreement and will not engage in any further communications while pursuing such transactions.
(b) The Company will promptly advise Buyer of, and inform Buyer of the terms of, any Proposal that the Company, any of its Subsidiaries or Affiliates or any of their Representatives may receive during the Exclusivity Period.
Alternative Transactions. From the date of this Agreement until the Closing Date, (i) each Company Party and its respective board of directors (or committees thereof, but not any individual director), officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives, each acting in their capacity as such, shall have the right, consistent with their fiduciary duties, to respond to any inbound indications of interest, but will no longer solicit Alternative Restructuring Proposals (or inquiries or indications of interest with respect thereto); and (ii) if any Company Party or the board of directors of any of the Company Parties determines, in the exercise of its fiduciary duties, to accept or pursue an Alternative Restructuring Proposal, the Company Parties shall notify (with email being sufficient) counsel to the Initial Backstop Parties within two (2) Business Days following such determination (an “Alternative Restructuring Proposal Notice”). Upon receipt of such Alternative Restructuring Proposal Notice, the Required Backstop Parties shall have the right to terminate this Agreement; provided that any such notice terminating this Agreement pursuant to Section 7.2 must notify the Company Parties that the Required Backstop Parties do not support the applicable Alternative Restructuring Proposal. The Company Parties’ advisors shall provide the Initial Backstop Parties Advisors and any other party determined by the Company Parties, with (x) regular updates as to the status and progress of any Alternative Restructuring Proposals and (y) reasonable responses to any reasonable information requests related to any Alternative Restructuring Proposals or the Company Parties’ actions taken pursuant to this Section 7.2. Nothing in this Agreement shall (a) impair or waive the rights of any Company Party to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions, or (b) prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement.
Alternative Transactions. Xxxxxxx shall not and shall not authorize or permit any of Representatives (including, without limitation, lawyers and accountants), directly or indirectly, without the prior approval of Bayswater, to:
(a) initiate contact with or solicit or enter into or knowingly encourage or participate in any discussions or negotiations with any person concerning any possible Alternative Transaction;
(b) furnish any non-public financial or business information to any Person in connection with any Alternative Transaction proposal to Xxxxxxx;
(c) accept, recommend, approve or enter into any agreement to implement an Alternative Transaction; or
(d) release any party from confidentiality or standstill agreements between Xxxxxxx and such party or amend such agreement; and Xxxxxxx will notify Bayswater immediately if any discussions or negotiations are sought to be initiated or any such information is requested with respect to an Alternative Transaction or potential Alternative Transaction or if Alternative Transaction is received or indicated to be forthcoming and such notification will include the identity of the Person making such Alternative Transaction, the terms thereof and any other information with respect thereto reasonably requested by Bayswater. Xxxxxxx shall ensure that its Representatives are aware of the provisions of this Section. Notwithstanding the foregoing provisions of this Section 6.2, Xxxxxxx shall not be restricted from considering, discussing, negotiating, or providing any information (including access to management) to a third party in respect of a bona fide unsolicited proposal to Xxxxxxx or its shareholders that the board of directors of Xxxxxxx, upon consultation with its financial and legal advisors, determines, in good faith, is required to be considered by it in order to discharge its fiduciary duties. Xxxxxxx shall provide to Bayswater a copy of any Alternative Transaction proposal and will provide Bayswater written notice of intent to recommend, accept or enter into an agreement with respect to such Alternative Transaction proposal not less than two business days before Xxxxxxx’x recommendation, acceptance or entry into such an agreement, at which time this Arrangement Agreement shall terminate. Notwithstanding anything to the contrary contained herein, if Bayswater or Xxxxxxx terminates this Agreement pursuant to Section 7.1, the exclusive dealing provisions of this Section 6.2 shall be terminated and Xxxxxxx shall, immediately upon such ter...
