Common use of Qualified Offer Clause in Contracts

Qualified Offer. Notwithstanding anything to the contrary contained in Section 3.1, the Investor, Parent or any member of the Investor Group may make a Qualified Offer in accordance with the following procedure: (a) In connection with any Qualified Offer, the Investor shall deliver the Qualified Offer in writing to the Company. In the event that the Company does not accept such Qualified Offer in writing within thirty (30) days after receipt, such offer shall be deemed withdrawn and the Company shall promptly commence an Auction in which the Investor, Parent and the Investor Group will be given a full and fair opportunity, as conclusively determined by the Board in good faith, to participate on terms, and to have any bid submitted by the Investor, Parent or any member of the Investor Group in such Auction evaluated on a basis, no less and no more favorable to the Investor than those afforded to other Auction participants. (b) Any Auction shall be subject to the following provisions: (i) The Auction shall be completed within 90 days after the Company receives the Qualified Offer and the corresponding sale shall close within 90 days after completion of the Auction. (ii) In the event that (A) the Investor Group is not the successful bidder in an Auction conducted pursuant to Section 3.4(a) or does not elect to participate in the Auction, and (B) the Company has received a fairness opinion from a nationally-recognized investment banking firm, which is selected by the Company and reasonably acceptable to the Investor, to the effect that the successful bidder's transaction provides the Company or its stockholders, as the case may be, with the highest value of all of the bids received in the Auction, then the Investor and Parent shall, and each of them shall cause the Investor Group to, vote all of their Voting Securities in favor of the successful bidder's transaction (provided that this agreement to vote in favor of such transaction does not waive any other rights that any member of the Investor Group may have under Delaware law, other than dissenter's rights), tender their shares (in the event of a tender or exchange offer), and otherwise reasonably cooperate in consummating the transaction. (iii) The Company, the Investor and Parent agree that the purchase price per share set forth in the Qualified Offer is highly confidential and, as such, the Company on the one hand and the Investor, Parent and the Investor Group, on the other, shall not, to the extent legally permissible, disclose such purchase price per share to any third party without the prior written consent of the other party. (c) To the extent that the consideration in a Qualified Offer or in any competing bid in an Auction is securities, the value of any securities offered shall equal the average Market Price per share or per unit of such securities during the 30 consecutive trading days immediately preceding the Company's receipt of the Qualified Offer or the receipt of the bid by the Company, respectively. In the case of any securities not theretofore traded, the value of such securities shall be determined by a nationally recognized investment banking firm selected by the Company and reasonably acceptable to the Investor. The Investor and the Company shall use their reasonable best efforts to cause any such determination of value to be made within five (5) business days following the Company's receipt of a Qualified Offer or a bid, as the case may be.

Qualified Offer. Notwithstanding anything to If the contrary contained in Section 3.1, the Investor, Parent or any member of the Investor Group may make Company receives a Qualified Offer and the Board of Directors has not redeemed the outstanding Rights or exempted such offer from the terms of this Agreement or called a special meeting of shareholders for the purpose of voting on whether or not to exempt such Qualified Offer from the terms of this Agreement, in accordance with each case by the end of the ninety (90) Business Days following procedure: (a) In connection with any the commencement of such Qualified Offer, the Investor shall deliver the Qualified Offer in writing to the Company. In the event that and if the Company does receives, not accept earlier than ninety (90) Business Days nor later than one hundred twenty (120) Business Days following the commencement of such Qualified Offer in writing within thirty Offer, a written notice complying with the terms of this Section 23.2 (30) days after receiptthe “Special Meeting Notice”), such offer shall be deemed withdrawn and the Company shall promptly commence an Auction in which the Investor, Parent and the Investor Group will be given a full and fair opportunity, as conclusively determined properly executed by the Board in good faith, to participate on terms, and to have any bid submitted holders of record (or their duly authorized proxy) of ten percent (10%) or more of the shares of Common Shares then outstanding (excluding shares of Common Shares beneficially owned by the Investor, Parent or any member of the Investor Group in such Auction evaluated on a basis, no less and no more favorable to the Investor than those afforded to other Auction participants. (b) Any Auction shall be subject to the following provisions: (i) The Auction shall be completed within 90 days after the Company receives Person making the Qualified Offer and such Person’s Affiliates and Associates), directing the corresponding sale shall close within 90 days after completion Board of Directors to submit to a vote of shareholders at a special meeting of the Auction. shareholders of the Company (a “Special Meeting”) a resolution authorizing the redemption of all, but not less than all, of the then outstanding Rights at the Redemption Price (the “Redemption Resolution”), then the Board of Directors shall take such actions as are necessary or desirable to cause the Redemption Resolution to be submitted to a vote of shareholders within ninety (90) Business Days following receipt by the Company of the Special Meeting Notice (the “Special Meeting Period”), including by including a proposal relating to adoption of the Redemption Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company, at any time during the Special Meeting Period and prior to a vote on the Redemption Resolution, enters into a Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Redemption Resolution will be separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement. For purposes of a Special Meeting Notice, the record date for determining eligible holders of record of the Common Shares shall be the ninetieth (90th) Business Day following the commencement of a Qualified Offer. Any Special Meeting Notice must be delivered to the Secretary of the Company at the principal executive offices of the Company and must set forth, as to the shareholders of record executing such Special Meeting Notice, (i) the name and address of such shareholders, as they appear on the Company’s books and records, (ii) the number of shares of Common Shares that are owned of record by each of such shareholders and (iii) in the case of Common Shares that is owned beneficially by another Person, an executed certification by the holder of record that such holder has executed such Special Meeting Notice only after obtaining instructions to do so from such beneficial owner. Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Redemption Resolution, or no position with respect to the Redemption Resolution, as it determines to be appropriate in the exercise of its fiduciary duties. In the event that (A) no Person has become an Acquiring Person prior to the Investor Group is not the successful bidder effective date of redemption referred to below in an Auction conducted pursuant to Section 3.4(a) or does not elect to participate in the Auctionthis sentence, and (B) the Company has received Qualified Offer continues to be a fairness opinion from Qualified Offer prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) and (C) either (1) the Special Meeting is not held on or prior to the ninetieth (90th) Business Day following receipt of the Special Meeting Notice or (2) at the Special Meeting at which a nationally-recognized investment banking firmquorum is present, which is the holders of a majority of the shares of Common Shares outstanding as of the record date for the Special Meeting selected by the Company Board of Directors (excluding shares of Common Shares beneficially owned by the Person making the Qualified Offer and reasonably acceptable such Person’s Affiliates and Associates), shall vote in favor of the Redemption Resolution, then all of the Rights shall be deemed redeemed at the Redemption Price by such failure to hold the Investor, to Special Meeting or as a result of the effect that adoption of the successful bidder's transaction provides Redemption Resolution by the shareholders of the Company (or its stockholdersthe Board of Directors shall take such other action as may be necessary to prevent the existence of the Rights from interfering with the consummation of the Qualified Offer), such redemption to be effective, as the case may be, with the highest value of all (x) as of the bids received in close of business on the AuctionOutside Meeting Date if a Special Meeting is not held on or prior to such date or (y) if a Special Meeting is held on or prior to the Outside Meeting Date, then the Investor and Parent shall, and each of them shall cause the Investor Group to, vote all of their Voting Securities in favor as of the successful bidder's transaction (provided that this agreement to vote in favor of such transaction does not waive any other rights that any member date on which the results of the Investor Group may have under Delaware law, other than dissenter's rights), tender their shares (in vote adopting the event of a tender or exchange offer), and otherwise reasonably cooperate in consummating Redemption Resolution at the transaction. (iii) The Company, the Investor and Parent agree that the purchase price per share set forth in the Qualified Offer is highly confidential and, Special Meeting are certified as such, the Company on the one hand and the Investor, Parent and the Investor Group, on the other, shall not, to the extent legally permissible, disclose such purchase price per share to any third party without the prior written consent of the other party. (c) To the extent that the consideration in a Qualified Offer or in any competing bid in an Auction is securities, the value of any securities offered shall equal the average Market Price per share or per unit of such securities during the 30 consecutive trading days immediately preceding the Company's receipt of the Qualified Offer or the receipt of the bid official by the Company, respectively. In appointed inspectors of election for the case of any securities not theretofore traded, the value of such securities shall be determined by a nationally recognized investment banking firm selected by the Company and reasonably acceptable to the Investor. The Investor and the Company shall use their reasonable best efforts to cause any such determination of value to be made within five (5) business days following the Company's receipt of a Qualified Offer or a bid, as the case may beSpecial Meeting.