Fiduciary Out Clause Samples
POPULAR SAMPLE Copied 147 times
Fiduciary Out. (a) Except as set forth in this Section 6.02(a), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders, the Board of Directors or such committee may withdraw or modify its approval or recommendation of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover Proposal. In evaluating any unsolicited Takeover Proposal, the Company's Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person (other than Parent or any of its Affiliates) relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company or any of its Subsidiaries or of 50% or more of the shares of Company Common Stock, any tender offer or exchange offer that if consummated would result in any person beneficially owning 50% or more of the shares of Company Common Stock, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Merger, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits to Parent of the transaction contemplated hereby.
Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Company Party or the board of directors, board of managers, or similar governing body of any Company Party (the aforementioned parties collectively as to the Company Parties, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that counsel to the Company Parties shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Backstop Parties following a determination made in accordance with this Section 7.1 to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.
Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Debtor or the board of directors, board of managers, or similar governing body of any Debtor (the aforementioned parties collectively as to the Debtors, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, including based on the results of the Independent Investigation; provided that counsel to the Debtors shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Equity Commitment Parties following a determination made in accordance with this Section 7.1 to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.
Fiduciary Out. Notwithstanding anything else in this Agreement to the contrary, nothing in this Agreement will require the Company or any directors, officers, managers, or members of the Company, each in its capacity as a director, officer, manager, or member of the Company, to take any action or to refrain from taking any action, to the extent inconsistent with its or their fiduciary duties under applicable law (as determined by them in good faith after consultation with outside legal counsel); provided that the Company shall promptly provide written notice to counsel to the 7.5% Noteholder Ad Hoc Group and the Exchangeable Noteholder Ad Hoc Group specified in Section 13.05 and to the Consenting Term Loan Lenders (directly or through the Term Loan Agent (at the Company’s option)) (and, in any case, within three (3) Business Days) after such determination.
Fiduciary Out. Notwithstanding the provisions of Section 7.2 above, nothing contained in this Agreement shall prevent CCI or its Board of Directors, from (A) furnishing non-public information, or entering into discussions or negotiations, with, any person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, if and only to the extent that (1) the Board of Directors of CCI believes in good faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and, after taking into account the strategic benefits anticipated to be derived from the Acquisition and the long-term prospects of MIOA and CCI as a combined company, such Acquisition Proposal would, if consummated, result in a transaction significantly more favorable over the long term than the Transactions, and CCI's Board of Directors determines in good faith after receipt of an opinion from outside legal counsel to the effect that such action is likely necessary for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person or entity, the CCI Board of Directors receives from such Person an executed confidentiality agreement with terms no more favorable to such party than those contained in this Agreement and in the Confidentiality Agreement. Without limiting Section 7.3 above, CCI shall give written notice to MIOA as soon as possible of any such Acquisition Proposal that the CCI Board of Directors determines meets standards set forth in this Agreement and whether CCI will exercise its right to use Acquisition Proposal as a fiduciary out shall mean that this Agreement is terminated and a termination fee is payable by CCI to MIOA pursuant to Section 7.5 hereof.
Fiduciary Out. Notwithstanding anything to the contrary in the Bidding Procedures or any document filed with or entered by the Court, nothing in the Bidding Procedures or the Bidding Procedures Order shall require a Debtor or its board of directors, board of managers, or similar governing body to take any action or to refrain from taking any action with respect to any Sale Transaction or the Bidding Procedures to the extent such Debtor or governing body determines in good faith, in consultation with counsel, that taking or failing to take such action, as applicable, would be inconsistent with applicable law or its fiduciary obligations under applicable law. Further, notwithstanding anything to the contrary in the Bidding Procedures but subject in all instances to the terms and conditions set forth in the RSA, until the closing of the Auction (if any), the Debtors and their respective directors, managers, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the right to: (A) consider, respond to, and facilitate alternate proposals for sales or other transactions involving any or all of the Assets (each, an “Alternate Proposal”); (B) provide access to non-public information concerning the Debtors to any entity or enter into confidentiality agreements or nondisclosure agreements with any entity; (C) maintain or continue discussions or negotiations with respect to Alternate Proposals; (D) otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiations of Alternate Proposals; and (E) enter into or continue discussions or negotiations with any person or entity regarding any Alternate Proposals.
Fiduciary Out. On or before 3 Banking Days after the date that the Borrowers file their Plan of Reorganization, the Borrowers shall have filed an application for approval of the Fiduciary Out.
4. Amendment of Section 8.12. Section 8.12 of the Credit Agreement is amended by (a) deleting the words AJuly 15, 1998" in the second line thereof, and replacing them with the words AJuly 21, 1998"; and (b) deleting the words "August 15, 1998" in the fourth line thereof, and replacing them with the words AAugust 18, 1998".
Fiduciary Out. The restrictions in clauses 9.3 and 9.4 do not apply to restrict BTH or any of its Related Bodies Corporate and their respective Authorised Persons from taking or refusing to take any action with respect to a Competing Proposal (in relation to which there has been no contravention of this clause 9) provided that:
(a) the Competing Proposal is bona fide and is made by or on behalf of a person that the BTH board considers is of sufficient commercial standing; and
(b) the BTH board has determined in good faith after:
(i) consultation with BTH’s financial adviser, that the Competing Proposal is or may reasonably be expected to lead to a Superior Proposal; and
(ii) receiving written advice from the receiving party’s external legal advisers experienced in transactions of this nature, that failing to take the action or refusing to take the action (as the case may be) with respect to the Competing Proposal would, or would be reasonably likely to, be inconsistent with the fiduciary or statutory duties owed by BTH’s directors under applicable law, or it would otherwise be unlawful not to take that action, provided that the actual, proposed or potential Competing Proposal was not directly or indirectly brought by, or facilitated by, a breach of clauses 9.1, 9.2, 9.3 or 9.4 and BTH has complied with its obligations under clause 9.5. For the avoidance of doubt, nothing in this clause 9 prevents or restricts BTH from responding to an expression of interest, offer, proposal or discussion in relation to, or that may be reasonably expected to encourage or lead to, an actual, proposed or potential Competing Proposal to (i) acknowledge receipt and/or (ii) advise that Third Party that BTH is bound by the provisions of this clause 9 and is only able to engage in negotiations, discussions or other communications if the fiduciary out in this clause 9.7 applies.
Fiduciary Out. Nothing in this Agreement shall prevent the Board of Directors of Summit or Seller from withholding, withdrawing, amending or modifying its unanimous recommendation in favor of the transactions contemplated hereby or from accepting a Superior Offer (as defined below) if (i) an unsolicited Superior Offer is made to Summit or Seller and is not withdrawn, (ii) Summit or Seller shall have provided prompt written notice to Buyer (a "Notice of Superior Offer") advising Buyer that Summit or Seller has received a Superior Offer, specifying in detail the material terms and conditions of such Superior Offer and identifying the Person making such Superior Offer, (iii) Summit and Seller shall have caused their financial and legal advisors to negotiate in good faith with Buyer during the three-day period referred to below to make such adjustments to the terms and conditions of this Agreement as would enable the parties to proceed with the sale of the Business to Buyer (iv) Buyer shall not have, within three (3) Business Days of Buyer's receipt of the Notice of Superior Offer, made an offer that the Summit Board by a majority vote determines in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation) to be at least as favorable to Summit's stockholders as such Superior Proposal (it being agreed that Summit's Board shall convene a meeting to consider any such offer by Buyer promptly following the receipt thereof), (v) the Board of Directors of Summit is advised in writing by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, or another law firm of national standing reasonably acceptable to Buyer, that, in light of such Superior Offer, the withholding, withdrawal, amendment or modification of such recommendation or the acceptance of such Superior Offer is required in order for the Board of Directors of Summit to comply with its fiduciary obligations to Summit's stockholders under applicable law and (v) neither Summit nor any of its representatives shall have violated any of the restrictions set forth in Section 7.9 or this Section 7.
Fiduciary Out. Notwithstanding any provision of this Agreement or any Transaction Document, neither party to this Agreement nor their respective Boards or any committee thereof shall be required to take or omit to take any act, including seeking another’s consent as otherwise required under this Agreement, if it is determined in good faith doing so would be reasonably likely to violate its or their fiduciary duties to the Company or its minority stockholders or any non-wholly owned Subsidiary of Genworth or the Company, as the case may be. This right shall be known herein as the “Fiduciary Out”.