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. (a) Notwithstanding the provisions of Section 7.2 above, nothing contained in this Agreement shall prevent MIOA 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 MIOA 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 Merger and the long-term prospects of MIOA and PHC 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 MIOA'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 MIOA Board of Directors receives from such Person an executed confidentiality agreement with terms no more favorable to such Person than those contained in this Agreement and in the Confidentiality Agreement; or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Without limiting Section 7.3 above, MIOA shall give written notice to PHC as soon as possible of any such Acquisition Proposal that the MIOA Board of Directors determines meets the standards set forth in this Agreement and whether MIOA will exercise its right to use such Acquisition Proposal as a fiduciary out. Notice from MIOA to PHC of its election to use such Acquisition Proposal as a fiduciary out shall mean that this Agreement is terminated and a termination fee is payable by MIOA to PHC pursuant to Section 7.5 hereof.
(b) Notwithstanding the provisions of Section 7.2 above, nothing contained in this Agreement shall prevent PHC or its Board of Directors, from (A) furnishing non-public information, or entering into discussions or negotiations, with, any person or entity in connection wi...
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. 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 "July 15, 1998" in the second line thereof, and replacing them with the words "July 21, 1998"; and (b) deleting the words "August 15, 1998" in the fourth line thereof, and replacing them with the words "August 18, 1998".
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 and counsel to the 2016 Lender 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 herein to the contrary, if the board of directors of the Debtors determine in their business judgment that another bidder or group of bidders submits a bid in the Chapter 11 Proceedings for (i) all or substantially all of the Debtors’ assets and business, including the Property; (ii) a sum of the parts of the Debtors’ assets and business which includes a bid for the Property; or (iii) solely the Property, and such bid described in the foregoing clauses (i), (ii) or (iii) is reasonably likely to result in a higher or better bid for the Debtors’ assets and/or business, thereby maximizing value for the Debtors’ bankruptcy estates, Seller shall have the right (the “Fiduciary Out”) to terminate this Agreement consistent with the Debtors’ fiduciary duties. For the avoidance of doubt, in the event Seller exercises its Fiduciary Out, Purchaser shall be entitled to a return of the Deposit and payment of the Breakup Fee to the extent provided pursuant to Section 5.2.6 hereof.
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 Xxxxxxxx, Xxxxxxx & Xxxxxxx, 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 Section 4.07, Seller may participate in discussions or negotiations with, or furnish information with respect to Seller, to any Person if (i) such Person has submitted to Seller a bona fide written proposal to acquire the stock or assets of Seller which was not first solicited on or after the date of execution of this Agreement (“Acquisition Proposal”), (ii) the Board of Directors of Seller (A) determines by a majority vote in its good faith judgment, after consultation with outside counsel, that taking such action is necessary in order to act in a manner consistent with the fiduciary duties of such Board under applicable laws, and (B) contemporaneously with furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Seller gives Purchaser written notice of the identity of such Person and of Seller’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, and (iii) contemporaneously with furnishing any such information to such Person, Seller furnishes such information to Purchaser (to the extent such information has not been previously furnished by Seller). In addition, notwithstanding Section 4.07, Seller may terminate this Agreement and proceed to consummate the transactions contemplated by the Acquisition Proposal provided and only if the Acquisition Proposal is a Superior Proposal (as hereinafter defined).
Fiduciary Out. Nothing in these Bidding Procedures will require the Debtors to take any action, or refrain from taking any action, with respect to these Bidding Procedures to the extent the Debtors determine that taking such action, or refraining from taking such action, as applicable, is required or appropriate to comply with applicable law or their fiduciary obligations. Starry Group Holdings, Inc.,
