Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would reasonably be expected to lead to, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party.
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a) hereof, in the event that NPS or Enzon, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board of directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior Offer, it may then take the following actions (but only if and to the extent that its board of directors concludes in good faith, after consultation with its outside legal counsel, that the failure to do so is reasonably likely to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) concurrently with furnishing any such nonpublic information to such third party, it gives the other party hereto written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreement, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, it furnishes such nonpublic information to the other party hereto (to the extent such nonpublic information has not been previously so furnished); and
(ii) engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or entering into discussions or negotiations with such third party, it gives the other party hereto written notice of its intention to hold or enter into discussions or negotiations with such third party.
Superior Offers. Notwithstanding anything to the contrary contained in Section 4.4, in the event that the Company or any of its subsidiaries receives a bona fide written Acquisition Proposal from a third party that is not solicited or otherwise procured in violation of Section 4.4(a) that the Special Committee has in good faith concluded (following the receipt of the advice of its outside legal counsel and its financial advisor) is, or is reasonably likely to lead to, a Superior Offer (as defined in Section 4.4(h)(ii)), it may then take the following actions (but only if and to the extent that the Special Committee concludes in good faith, after receipt of advice of its outside legal counsel and financial adviser, that failing to take such actions is reasonably likely to be a violation of directors’ fiduciary duties to the Company’s stockholders under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) it receives from the third party an executed confidentiality and standstill agreement, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement; and (B) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished); and
(ii) Engage in negotiations and discussions with the third party with respect to the Acquisition Proposal.
Superior Offers. Arrow shall comply with the terms and conditions of Section 6.1 of the Merger Agreement and shall provide Parent copies of any notice sent by Arrow to Crossbow pursuant to Section 6.1 of the Merger Agreement.
Superior Offers. In the event that any Person submits to the Company (and does not withdraw) an Acquisition Proposal that the Company Board concludes in good faith (after consultation with its outside legal counsel and a financial advisor of national standing) is, or is reasonably likely to become, a Superior Offer, then notwithstanding Section 6.6(a), the Company may, so long as the Company Stockholders Approval has not yet been obtained, (i) enter into discussions with such Person regarding such Acquisition Proposal, and (ii) deliver or make available to such Person non-public information regarding the Company and the Company Subsidiaries; provided, that: (A) in each case, neither the Company, any Company Subsidiary nor any Representative of the Company shall have violated any of the restrictions set forth in this Section 6.6; (B) in each case, the Company Board first shall have concluded in good faith, after consultation with its outside legal counsel, that such action is reasonably required in order for the Company Board to comply with its fiduciary obligations to the Company's stockholders under applicable Laws; (C) in each case the Company first shall have provided Parent with written notice of the identity of such Person and all of the material terms and conditions of such Acquisition Proposal and of the Company's intention to take actions in response to such Superior Offer, specifying the actions it intends to take; and (D) in the case of clause (ii), the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to the Company's Confidential Information as the Confidentiality Agreement, it being understood that such confidentiality agreement shall not include any provision for any exclusive right to negotiate with such Person or having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement.
Superior Offers. Notwithstanding anything to the contrary contained in Sections 4.2(a), 4.2(b) or 4.2(c), in the event that any Receiving Constituent Company receives, prior to the adoption and approval of this Agreement and the transactions contemplated hereby by the stockholders of such Receiving Constituent Company in accordance with applicable law, an unsolicited, bona fide written Acquisition Proposal from a third Person with respect to which such Receiving Constituent Company’s Board of Directors has in good faith concluded, after consultation with its outside legal counsel and its financial advisor, if any, that such Acquisition Proposal is, or is reasonably likely to result in, a Superior Offer, such Receiving Constituent Company may then (i) furnish nonpublic information to the third Person making such Acquisition Proposal, and (ii) engage in negotiations with the third Person with respect to such Acquisition Proposal; provided that:
(A) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third Person, such Receiving Constituent Company receives from such third Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third Person on such Receiving Constituent Company’s behalf; and
(B) the Board of Directors of such Receiving Constituent Company reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information or enter into such discussion or negotiations would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of such Receiving Constituent Company under applicable law.
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable law an unsolicited, bona fide written Acquisition Proposal from a third party and that the Company’s Board of Directors has in good faith concluded, after consultation with its outside legal counsel and its financial advisor, that such Acquisition Proposal is, or is reasonably likely to result in, a Superior Offer, the Company may then (1) furnish nonpublic information to the third party making such Acquisition Proposal and (2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided that:
(i) the Company complies with all of the terms of this Section 5.3;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (A) the Company receives from such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf in substantially the form of the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished); and
(iii) the Board of Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information or enter into such discussion or negotiations would reasonably be expected to result in a breach of the Board of Directors’ fiduciary duties to the stockholders of the Company under applicable law.
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that after the date hereof and prior to obtaining the Requisite Shareholder Approval, (1) Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that did not result from a breach of this Section 5.3 and (2) its Board of Directors or a committee thereof determines in good faith (following consultation with its Representatives) that such Acquisition Proposal is, or is reasonably likely to constitute, a Superior Offer, then Company, its Board of Directors or a committee thereof may directly or indirectly through advisors, agents, other intermediaries or representatives, take the following actions:
(i) furnish non-public information to the third party making such Acquisition Proposal (provided that (A) Company enters into an Acceptable Confidentiality Agreement with the third party prior to furnishing any non-public information, and (B) substantially concurrently with furnishing such information to such third party, Company furnishes copies of such information to Parent, to the extent not previously provided to Parent); and
(ii) engage in discussions and negotiations (including exchanging draft agreements) with the third party (and its Representatives) with respect to the Acquisition Proposal.
Superior Offers. Seller shall notify Purchaser in accordance with the Marketing Protocol Order with respect to any Acquisition Proposal and otherwise cooperate in assuring that Purchaser receives the benefits contemplated by the Marketing Protocol Order.
Superior Offers. Notwithstanding Section 6.2 hereof, Ursa shall not be restricted from considering, discussing, negotiating, or providing any information (including access to management) to a third party in respect of a bona fide unsolicited proposal to Ursa or its shareholders, which did not otherwise result from a breach of this Article 6, that the board of directors of Ursa, upon consultation with its financial and legal advisors, determines, in good faith, to be a Superior Offer and required to be considered by it in order to discharge its fiduciary duties, provided however, that prior to taking any such action, Ursa shall notify Prophecy of a Superior Offer in writing (the “Notice of Superior Offer”), including the identity of the offeror and the terms of the offer and shall provide Prophecy with any other information with respect thereto as may be reasonably required by Prophecy and obtain a confidentiality agreement for the Person making such Superior Offer. Ursa shall keep Prophecy fully informed on a prompt basis of the status, including any change to the material terms, of any such inquiry, proposal or offer. Prophecy shall have fourteen (14) days in which to complete the Arrangement or elect to meet the terms of the Superior Offer (the “Notice Period”). If Prophecy elects to meet the terms of the Superior Offer, it shall have the greater of 120 days from the date of the Letter Agreement or 90 days from its agreement to meet the terms of the Superior Offer to complete the Arrangement. If Prophecy is unable to complete the Arrangement or elects not to meet the Superior Offer within the Notice Period, Ursa may, at its option, terminate this Agreement, subject to Section 7.3 of this Agreement. In the event that Ursa provides Prophecy with a Notice of Superior Offer on a date that is less than five Business Days prior to the Special Meeting, Ursa shall adjourn the Special Meeting to a date that is not less than seven Business Days and not more than 30 Business Days after the Notice of Superior Offer. During the Notice Period, Ursa agrees that Prophecy shall have the right, but not the obligation, to offer to amend the terms of this Agreement. The board of directors of Ursa will review any proposal by Prophecy to amend the terms of this Agreement in good faith in order to determine, in its discretion in the exercise of its fiduciary duties, whether Prophecy’s amended proposal upon acceptance by Ursa would result in such Superior Offer ceasing to be a Superior Offer....
