Qualifying Proposal Clause Samples

Qualifying Proposal. Notwithstanding Section 5.6(a), following receipt of a Qualifying Strategic Transaction Proposal (as hereinafter defined), neither KRBHC nor KRB nor any of their Representatives shall be prohibited from (i) engaging in discussions or negotiations with a third party which has made a proposal that satisfies the requirements of a Qualifying Strategic Transaction Proposal and thereafter providing to such third party information previously provided or made available to VIBC, provided the third party shall have entered into a confidentiality agreement, (ii) taking and disclosing to KRBHC's shareholders a position contemplated by Rule 14e-2(a) under the Securities Exchange Act of 1934, or otherwise making disclosure of the Qualifying Strategic Transaction Proposal to KRBHC's shareholders, or (iii) subject to the terms of Section 11.1(e), terminating this Agreement. For purposes of this Section 5.6, a "Qualifying Strategic Transaction Proposal" shall mean a bona fide written Strategic Transaction Proposal with respect to which KRBHC's or KRB's Board of Directors shall have determined, after consultation with KRBHC's or KRB's counsel, that the action by KRBHC or KRB contemplated under either clause (i), (ii) or (iii), as applicable, of the immediately preceding sentence is required under the fiduciary duties owed by the Board of Directors of KRBHC to the holders of KRBHC Stock or by the Board of Directors of KRB to KRBHC, which determination has been made acting in good faith and on the basis of a written opinion from a financial advisor retained by KRBHC or KRB to the effect that the financial terms of such Strategic Transaction Proposal are, from KRBHC's shareholders' or KRB's shareholder's perspective, superior to the Merger and the PS Merger.