Common use of Other Offers, etc Clause in Contracts

Other Offers, etc. (a) No Seller Entity shall, nor shall it authorize or permit any of its Affiliates or Representatives to, directly or indirectly: (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act), any nonpublic 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 Acquisition Proposal; (iii) subject to 7.2(c) approve, endorse or recommend any Acquisition Proposal; or (iv) subject to 7.2(c) enter into any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. (b) In addition to the obligations of Seller set forth in Section 7.2(a), as promptly as practicable and in any event within one business day after any of the executive officers of Seller become aware thereof, Seller shall advise Buyer of any request received by Seller for nonpublic information which Seller reasonably believes could lead to an Acquisition Proposal or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal, and the identity of the Person or Group making any such request or Acquisition Proposal. Seller shall keep Buyer informed promptly of material amendments or modifications to any such request or Acquisition Proposal. (c) Seller and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will use their respective reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Affiliate or Representative of any Seller Entity shall be deemed to be a breach of this Section 7.2 by Seller; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of Seller or its Subsidiaries from (i) furnishing information to, or entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide proposal to acquire Seller or any Subsidiary pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if (a) the Board of Directors of Seller receives an opinion from its independent financial advisor that such proposal is superior to the transactions contemplated by this Agreement from a financial point-of-view, (b) the Board of Directors of Seller, after consultation with and after considering the advice of legal counsel, determines in good faith that failure to take such action will cause the Board of Directors of Seller to breach its fiduciary duties to stockholders under applicable law (such proposal that satisfies (a) and (b) being referred to herein as a “Superior Proposal”); and (c) Seller promptly notifies Buyer of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Seller or any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any inquiries, proposals or offers.

Other Offers, etc. (a) No Seller Entity Target and each Target Subsidiary shall, nor and shall it authorize or permit any cause each of its their Affiliates or and each of their respective officers and directors to, and shall use their commercially reasonable efforts to cause their respective employees and Representatives to, immediately cease any existing negotiations, or discussions with any third party that may be ongoing with respect to any Acquisition Proposal and shall use its commercially reasonable efforts to cause any such parties in possession of confidential information about Target that was furnished by or on behalf of Target to return or destroy all such information in the possession of such third party or its officers, directors, Affiliates, employees or Representatives (it being understood and agreed that any such request to return or destroy information shall not be deemed to revoke any invitation previously made by Target to any third party to make an Acquisition Proposal). Target and each Target Subsidiary shall not take, and shall cause its Affiliates and each of their respective officers and directors not to take, and shall use its commercially reasonable efforts to cause its employees and Representatives not to take, any action directly or indirectly: indirectly to (i) solicit, initiate, encourage initiate or induce the making, making or submission or announcement of any Acquisition Proposal; , (ii) participate in enter into any discussions letter of intent, agreement, arrangement or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act), any nonpublic information understanding 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 Acquisition Proposal; , other than a confidentiality agreement referred to below, in accordance with the terms and under the circumstances contemplated below in this Section 7.2(a), or approve, endorse or recommend 45 any Acquisition Proposal (iii) subject or publicly announce an intention to 7.2(c) approve, endorse or recommend any Acquisition Proposal; ) or enter into any agreement, arrangement or understanding that would require Target to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any discussions or negotiations with, or furnish or disclose any nonpublic information to, or afford access to any of the properties, Assets, books or records of Target or any Target Subsidiary to, any Person in connection with or in furtherance of any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, or (iv) subject grant any waiver or release under any standstill or similar provision (whether in a separate agreement, a confidentiality agreement or otherwise) with respect to 7.2(c) enter into Target or any Acquisition Agreement contemplating Target Subsidiary other than a waiver or otherwise relating release limited to any Acquisition Transaction. permitting another Person to initiate (b) In addition by means of written correspondence to the obligations Board of Seller set forth in Directors of Target) nonpublic negotiations or discussions that are permitted by the proviso below; provided, that so long as there has been no material breach of this Section 7.2(a), as promptly as practicable and prior to the Stockholders Meeting, Target, in any event within one business day after any of the executive officers of Seller become aware thereof, Seller shall advise Buyer of any request received by Seller for nonpublic information which Seller reasonably believes could lead response to an Acquisition Proposal that was not solicited from the date hereof by Target or any Target Subsidiary or any of their respective officers, directors, employees, Affiliates or Representatives, may request clarifications from, furnish information to, or enter into negotiations or discussions with, any Person which makes such unsolicited Acquisition Proposal, the material Proposal if (A) such action is taken subject to a confidentiality agreement with Target containing customary terms and conditions of and which does not contain any terms that would prevent Target from complying with its obligations pursuant to this Section 7.2; except that if such request or Acquisition Proposal, and confidentiality agreement contains provisions that are less restrictive than the identity comparable provisions of the Person Confidentiality Agreement, or Group making any such request or Acquisition Proposal. Seller shall keep Buyer informed promptly of material amendments or modifications to any such request or Acquisition Proposal. (c) Seller and its Subsidiaries shall immediately cease any and all existing activitiesomits restrictive provisions contained in the Confidentiality Agreement, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will use their respective reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Without limiting then the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Affiliate or Representative of any Seller Entity Confidentiality Agreement shall be deemed to be a breach of this Section 7.2 by Seller; provided, however, that nothing contained automatically amended to contain in this Section 7.2 shall prohibit the Board of Directors of Seller or its Subsidiaries from (i) furnishing information tosubstitution for such comparable provisions such less restrictive provisions, or entering into discussions or negotiations to omit such restrictive provisions, as the case may be, and in connection with the foregoing, Target agrees not to waive any person or entity that makes an unsolicited writtenof the provisions in any such confidentiality agreement without waiving the similar provisions in the Confidentiality Agreements to the same extent, bona fide proposal to acquire Seller or any Subsidiary pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if (aB) Target complies in all material respects with the provisions of Section 7.2(c) hereof and (C) the Board of Directors of Seller receives Target reasonably determines in good faith, after consultation with an opinion from its independent financial advisor nationally recognized investment bank and Target's outside legal advisors, that such proposal Acquisition Proposal constitutes a Superior Proposal or is superior reasonably likely to result in a Superior Proposal. Notwithstanding the transactions contemplated by this Agreement from a financial point-of-viewforegoing, (b1) the Board of Directors of SellerTarget may authorize a communication with any party that is limited to making such party aware of the existence of this Agreement, after consultation and (2) a director, officer, employee or Representative of Target or a Target Subsidiary may respond to an unsolicited communication by making such party aware that such director, officer, employee or Representative may not communicate with such party unless such party has first contacted the Board of Directors of Target in writing and the Board of Directors subsequently authorizes further communication. (b) Neither the Board of Directors of Target nor any committee thereof shall withdraw, withhold or modify, or propose to withdraw, withhold or modify, in a manner adverse to Buyer, the approval, adoption or recommendation, as the case may be, of the Merger, this Agreement or any of the other transactions contemplated hereby (a "Target Change of Recommendation"), or resolve to do any of the foregoing; provided, that the Board of Directors of Target may effect a Target Change of Recommendation prior to the Stockholders Meeting if (A) Target shall have given Buyer two (2) Business Days' written notice of its intention to effect a Target Change of Recommendation and (B) the Board of Directors of Target, in its good faith judgment and after considering being advised by reputable outside counsel experienced in such matters, shall have determined that the advice of legal counsel, determines in good faith that failure to take such action will cause would result in a breach of the Board of Directors' duties to Target's stockholders under applicable Law. Notwithstanding anything to the contrary contained in Section 7.2(b) or elsewhere in this Agreement, the Board of Directors of Seller Target may take and disclose to breach the Target stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal, or making any other disclosure to the Target's stockholders if, the Board of Directors determines in its fiduciary duties good faith judgment (after receipt of advice from reputable outside legal counsel experienced in such matters) that there is a reasonable basis to stockholders conclude disclosure is required under applicable law (such proposal that satisfies (a) and (b) being referred to herein as a “Superior Proposal”); and Law. (c) Seller Target shall promptly notifies (and in any event within two (2) days of the receipt thereof) notify Buyer (in writing) after: (i) receipt of an Acquisition Proposal (including the identity of such inquiriesofferor, proposals or offers received by, any a copy of such information requested fromAcquisition Proposal, or if such Acquisition Proposal was not made in writing, a summary of the terms of such Acquisition Proposal), (ii) any request for information relating to the Target (including nonpublic information) or for access to the properties, books or records of the Target by any Person that has made an inquiry that could reasonably lead to an Acquisition Proposal, or (iii) receipt of an amendment to a previously disclosed Acquisition Proposal (including the identity of such offeror, a copy of such amendment or, if such amendment was not made in writing, a summary of the terms of such amendment). In addition, Target shall inform Buyer within two (2) days with respect to any material development relating to such Acquisition Proposal, including the entering into of discussions or negotiations, and any results of any discussions or negotiations sought (including any changes in material terms or conditions based thereon), with respect thereto. Target shall (within two (2) days that such information or access is provided to such third party) provide Buyer with all material information or access provided to any third party that has not previously been provided to Buyer regardless of whether Buyer previously requested such information (regardless of whether such information has been previously provided to Buyer). In the event of any Target Change of Recommendation, Target shall provide Buyer with the Target's stockholder lists and allow and facilitate Buyer's contact with Target's stockholders and prospective investors and following a Target Change in Recommendation such contacts may be initiated or continued with Seller or any made without regard to the limitations set forth in Section 7.5. (d) Subject to the provisions of its representatives indicating, in connection with such noticethis Agreement, the name Parties acknowledge and agree that Target may, subject to compliance with the provisions of Section 9.1(h) hereof, accept a Superior Proposal, enter into an agreement for such person Superior Proposal and the material terms and conditions of any inquiries, proposals or offersterminate this Agreement concurrently therewith.

Other Offers, etc. (a) No Seller Entity shall, nor shall it authorize or permit any of its Affiliates or Representatives to, directly or indirectly: indirectly (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal; , (ii) participate in any discussions or negotiations regarding, or furnish to any Person or “"Group” " (as such term is defined in Section 13(d) under the Exchange Act), ) any nonpublic 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 to, any Acquisition Proposal; , (iii) subject to 7.2(c) approve, endorse or recommend any Acquisition Proposal; , or (iv) subject to 7.2(c) enter into any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. (b) In addition to the obligations of Seller set forth in Section 7.2(a), as promptly as practicable practicable, and in any event within one business day after any of the executive officers of Seller become aware thereof, Seller shall advise Buyer of any request received by Seller for nonpublic information which Seller reasonably believes could lead to an Acquisition Proposal or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal, and the identity of the Person or Group making any such request or Acquisition Proposal. Seller shall keep Buyer informed promptly of material amendments or modifications to any such request or Acquisition Proposal. (c) Seller and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will use their respective reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 7.2, by any Affiliate or Representative of any Seller Entity shall be deemed to be a breach of this Section 7.2 by Seller; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of Seller or its Subsidiaries from (i) furnishing information to, or entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide proposal to acquire Seller or any Subsidiary pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if (a) the Board of Directors of Seller receives an opinion from its independent financial advisor that such proposal is superior to the transactions contemplated by this Agreement from a financial point-of-view, (b) the Board of Directors of Seller, after consultation with and after considering the advice of legal counsel, determines in good faith that failure to take such action will cause the Board of Directors of Seller to breach its fiduciary duties to stockholders under applicable law (such proposal that satisfies (a) and (b) being referred to herein as a “Superior Proposal”); and (c) Seller promptly notifies Buyer of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Seller or any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any inquiries, proposals or offers.

Other Offers, etc. (a) No Seller ACCESS Entity shall, nor shall it authorize or permit any of its Affiliates or Representatives to, directly or indirectly: indirectly (i) solicit, initiate, initiate or Knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal; Proposal or, (ii) participate in any discussions or negotiations regarding, or furnish to any Person or “"Group” " (as such term is defined in Section 13(d) under the Exchange Act), ) any nonpublic information with respect to, or take any other action Knowingly to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to to, any Acquisition Proposal; (iii) subject . Notwithstanding the foregoing, if, at any time prior to 7.2(c) approvethe Effective Time, endorse or recommend any the Board of Directors of ACCESS determines in good faith, after consulting with and considering advice from its outside counsel, that the failure to do so would create a reasonable likelihood of a breach of their duties as directors to the ACCESS stockholders under applicable Law, ACCESS may, in response to an unsolicited bona fide Acquisition Proposal; , (x) furnish information with respect to the ACCESS Entities to such Person or Group and (ivy) subject to 7.2(c) enter into any participate in negotiations regarding such Acquisition Agreement contemplating or otherwise relating to any Acquisition TransactionProposal. (b) Neither the Board of Directors of ACCESS nor any committee thereof shall (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Keryx, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause ACCESS to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal (each, an "Acquisition Agreement"). Notwithstanding the foregoing or any other provision contained in this Agreement, in the event that prior to the Effective Time, ACCESS receives a Superior Proposal and the Board of Directors of ACCESS determines in good faith, after consulting with and considering advice from its outside counsel, that the failure to do so would create a reasonable likelihood of a breach of their duties as directors to the ACCESS stockholders under applicable Law, the Board of Directors may (x) withdraw or modify its approval or recommendation of this Agreement or the Merger or (y) approve or recommend a Superior Proposal, but in each case, only at a time that is at least 48 hours following delivery to Keryx of a written notice advising Keryx that the Board of Directors of ACCESS has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal and during which 48 hour period ACCESS will in good faith cooperate and negotiate with Keryx, on a non-exclusive basis, with the intent of enabling the parties hereto to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be consummated. (c) In addition to the obligations of Seller ACCESS set forth in Section 7.2(a8.3(a), as promptly as practicable practicable, and in any event within one business day after any of the executive officers of Seller ACCESS become aware thereof, Seller ACCESS shall advise Buyer of any request received by Seller for nonpublic information which Seller reasonably believes could lead to an Acquisition Proposal or Keryx of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal, and the identity of the Person or Group making any such request or Acquisition Proposal. Seller ACCESS shall keep Buyer Keryx informed promptly of material amendments or modifications to any such request or Acquisition Proposal. (cd) Seller Subject to the preceding provisions of this Section 8.3, ACCESS and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and will use their respective reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 8.3, by any Affiliate or Representative of any Seller ACCESS Entity shall be deemed to be a breach of this Section 7.2 8.3 by Seller; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of Seller or its Subsidiaries from (i) furnishing information to, or entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide proposal to acquire Seller or any Subsidiary pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if (a) the Board of Directors of Seller receives an opinion from its independent financial advisor that such proposal is superior to the transactions contemplated by this Agreement from a financial point-of-view, (b) the Board of Directors of Seller, after consultation with and after considering the advice of legal counsel, determines in good faith that failure to take such action will cause the Board of Directors of Seller to breach its fiduciary duties to stockholders under applicable law (such proposal that satisfies (a) and (b) being referred to herein as a “Superior Proposal”); and (c) Seller promptly notifies Buyer of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Seller or any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any inquiries, proposals or offersACCESS.