Common use of Superior Offers Clause in Contracts

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 5.3(a) hereof), in the event that NPS Avanex or EnzonOplink, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal a Superior Offer (as defined in Section 5.3(g) 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 advisoritself), is, or is reasonably likely to result in, a Superior Offer, it may then take the following actions (but only if (i) such party has not breached Section 5.3(a) in connection with (i) the Superior Offer or otherwise breached in any material respect Section 5.3(a) and (ii) to the extent that its board Board of directors concludes Directors believes in good faith, after following consultation with its outside legal counsel, that the failure to do so take any such action is reasonably likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw): (i) furnish Furnish nonpublic information to the third party making such Acquisition ProposalSuperior Offer, provided that (i) (A) at least one (1) concurrently with business day prior to -------- furnishing any such nonpublic information to such third party, it its gives the other party hereto written notice of its intention to furnish nonpublic information and (2B) 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 (as defined in Section 5.4), and (Bii) 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 Engage in discussions or negotiations with the third party with respect to the Acquisition ProposalSuperior Offer, provided that concurrently with holding or at least forty-eight (48) -------- hours prior to 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 5.3(a) hereof6.5(a), in the event that NPS or Enzon, as the case may be, Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board Board of directors Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior OfferOffer (as defined in Section 6.5(g)), it may then take the following actions (but only if and to the extent that its board Board of directors Directors concludes in good faith, after following consultation with its outside legal counsel, that the failure to do so is reasonably likely required in order to result in a breach prevent such Board of Directors from breaching its fiduciary obligations under applicable Legal Requirementslaw): (i) furnish 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 Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreementagreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement (as defined in Section 6.8) and (B) contemporaneously with furnishing any such nonpublic information to such third party, it furnishes such nonpublic information to the other party hereto Parent (to the extent such nonpublic information has not been previously so furnished); and (ii) engage 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 Parent 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 5.3(a) hereofthis Agreement, in the event that NPS the Company or Enzon, as the case may be, any subsidiary receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board of directors the Board has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely expected to result in, a Superior OfferOffer (as defined in Section 5.4(g)(ii)), it the Company and its Representatives on behalf of the Company may then take the following actions (but only if and to the extent that its board of directors the Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Board to do so is reasonably likely to result in a breach of comply with its fiduciary obligations duties to the Company’s stockholders under applicable Legal Requirementslaw): (i) furnish 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 its gives the other party hereto Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreementagreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive to such third party as the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, it the Company furnishes such nonpublic information to the other party hereto Parent (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or entering into discussions or and negotiations with such third party, it the Company gives the other party hereto Parent written notice of the its intention to hold or enter into discussions or and negotiations with such third party.

Superior Offers. Notwithstanding anything to the contrary --------------- contained in Section 5.3(a) hereof), in the event that NPS Avanex or EnzonOplink, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal a Superior Offer (as defined in Section 5.3(g) 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 advisoritself), is, or is reasonably likely to result in, a Superior Offer, it may then take the following actions (but only if (i) such party has not breached Section 5.3(a) in connection with (i) the Superior Offer or otherwise breached in any material respect Section 5.3(a) and (ii) to the extent that its board Board of directors concludes Directors believes in good faith, after following consultation with its outside legal counsel, that the failure to do so take any such action is reasonably likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw): (i) furnish Furnish nonpublic information to the third party making such Acquisition ProposalSuperior Offer, provided that (i) (A) at least one (1) concurrently with business day prior -------- to furnishing any such nonpublic information to such third party, it its gives the other party hereto written notice of its intention to furnish nonpublic information and (2B) 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 (as defined in Section 5.4), and (Bii) 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 Engage in discussions or negotiations with the third party with respect to the Acquisition ProposalSuperior Offer, provided that concurrently with holding or at least forty-eight (48) -------- hours prior to 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 5.3(a) hereofthis Agreement, in the event that NPS or Enzon, as the case may be, Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board of directors the Board has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely expected to result in, a Superior Offer, it the Company and its Representatives on behalf of the Company may then take the following actions (but only if and to the extent that its board of directors the Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Board to do so is reasonably likely to result in a breach of comply with its fiduciary obligations duties to the Company’s stockholders under applicable Legal Requirementslaw): (i) furnish 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 its gives the other party hereto Cloudtech written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreementagreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive to such third party as the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, it the Company furnishes such nonpublic information to the other party hereto Cloudtech (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or entering into discussions or and negotiations with such third party, it the Company gives the other party hereto Cloudtech written notice of the its intention to hold or enter into discussions or and negotiations with such third party.

Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a) hereof), in the event that NPS Western Multiplex or EnzonProxim, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board Board of directors Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or ) is reasonably likely to result in, a Superior OfferOffer (as defined in Section 5.3(h)), it may then take the following actions (but only if and to the extent that its board Board of directors Directors concludes in good faith, after following 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 Requirementslaw require it to do so): (i) furnish Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Ai) (1A) concurrently with furnishing any such nonpublic information to such third party, it its gives the other party hereto written notice of its intention to furnish nonpublic information and (2B) 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 (as defined in Section 5.4), and (Bii) 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 Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or three (3) business days prior to entering into discussions or negotiations with such third party, it gives the other party hereto written notice of the its intention to hold or 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, Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board Board of directors Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior Offer, it the Company may then take the following actions (but only if and to the extent that its board the Board of directors Directors of the Company concludes in good faith, after consultation with its following the receipt of advice of the Company’s 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 Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) concurrently with prior to furnishing any such nonpublic information to such third party, it the Company gives the other party hereto Parent no less than 24 hours written notice of its intention to furnish such nonpublic information and (2) it the Company receives from the third party an executed confidentiality agreementagreement 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, 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 the Company furnishes such nonpublic information to the other party hereto Parent (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or no less than 24 hours prior to entering into discussions or negotiations with such third party, it the Company gives the other party hereto Parent written notice of its the Company’s intention to hold or enter into discussions or negotiations with such third party.

Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a) hereofthis Agreement, in the event that NPS the Company or Enzon, as the case may be, any subsidiary receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board of directors the Board has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely expected to result in, a Superior OfferOffer (as defined in Section 5.4(g)(ii)), it the Company and its Representatives on behalf of the Company may then take the following actions (but only if and to the extent that its board of directors the Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Board to do so is reasonably likely to result in a breach of comply with its fiduciary obligations duties to the Company’s stockholders under applicable Legal Requirementslaw): (i) furnish 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 Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreementagreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive to such third party as the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, it the Company furnishes such nonpublic information to the other party hereto Parent (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or entering into discussions or and negotiations with such third party, it the Company gives the other party hereto Parent written notice of its the Company’s intention to hold or enter into discussions or and negotiations with such third party.

Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a) hereofthis Agreement, in the event that NPS the Company or Enzon, as the case may be, any subsidiary receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board of directors the Board has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely expected to result in, a Superior OfferOffer (as defined in Section 5.4(g)(ii)), it the Company and its Representatives on behalf of the Company may then take the following actions (but only if and to the extent that its board of directors the Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Board to do so is reasonably likely to result in a breach of comply with its fiduciary obligations duties to the Company's stockholders under applicable Legal Requirementslaw): (i) furnish 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 Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreementagreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive to such third party as the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such third party, it the Company furnishes such nonpublic information to the other party hereto Parent (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with holding or entering into discussions or and negotiations with such third party, it the Company gives the other party hereto Parent written notice of its the Company's intention to hold or enter into discussions or and 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, Maxim receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its board constitutes or that the Board of directors has Directors of Maxim determines in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, in a Superior OfferOffer (as defined in Section 5.3(g)) with respect to itself, it may then may, at any time prior to obtaining the Maxim Stockholder Approval (but in no event after obtaining the Maxim Stockholder Approval), take the following actions (but only (i) if Maxim has not breached Section 5.3(a) in connection with the Superior Offer and (ii) to the extent that its board Maxim’s Board of directors concludes Directors believes in good faith, after consultation consulting with and receiving the advice of its outside legal counsel, that the failure to do so take any such action is reasonably likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw): (i) furnish Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (i) (A) at least one (1) concurrently with business day prior to furnishing any such nonpublic information to such third party, it party Maxim gives the other party hereto EpiCept written notice of its intention to furnish nonpublic information and (2B) it Maxim 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 (as defined in Section 5.4), and (Bii) contemporaneously with furnishing any such nonpublic information to such third party, it furnishes such nonpublic information to the other party hereto EpiCept (to the extent such nonpublic information has not been previously so furnished); and (ii) engage Engage in discussions or negotiations with the third party with respect to the Acquisition ProposalSuperior Offer, provided that concurrently with holding or at least forty-eight (48) hours prior to entering into discussions or negotiations with such third party, it gives the other party hereto EpiCept written notice of its intention to hold or enter into discussions or negotiations with such third party.