Common use of Competing Offer Clause in Contracts

Competing Offer. Without limiting the generality of the right of the Board of Directors of Evox to cancel or change the Recommendation based upon its Fiduciary Duties, in the event a third party publishes its decision to offer to purchase all Shares and the Loan Notes through a public tender offer (“Competing Offer”), the Board of Directors of Evox may, subject to Section 3.2 and the provisions of this Section 1.4.2.2, at any time prior to the Closing Date, cancel or change the Recommendation if it reasonably and in good faith considers, after taking advice from reputable external legal counsel and financial advisors and comparing the consideration and other terms and conditions, judged as a whole, of the Competing Offer with KEMET’s offer (as possibly enhanced as described below) pursuant to this Agreement, that it would no longer be in the best interest of the Evox shareholders or holders of the Loan Notes to accept the Tender Offer. Notwithstanding anything to the contrary set forth in the preceding paragraph, the Board of Directors of Evox may cancel or change the Recommendation only if prior to such cancellation or change, the Board of Directors of Evox has provided KEMET with a reasonable opportunity to discuss with a representative of the Board of Directors of Evox about matters arising from the Competing Proposal (as defined below) and allowed KEMET five (5) banking days from the date of KEMET having been informed of the identity of the party having made the Competing Proposal as well as of the price and terms and conditions of the Competing Proposal as set forth in Section 3.2, to enhance its offer pursuant to this Agreement. If KEMET would enhance its offer pursuant to the above so as to, in the reasonable opinion of the Board of Directors of Evox rendered in good faith, be at least equally favourable to the shareholders as the Competing Proposal, the Board of Directors of Evox shall confirm and uphold the Recommendation for the Tender Offer, as enhanced.

Competing Offer. Without limiting the generality of the right of the Board of Directors of Evox to cancel or change the Recommendation based upon its Fiduciary Duties, in In the event a third party publishes its decision to offer to purchase any or all Outstanding Shares and the Loan Notes Outstanding Equity Instruments through a public tender offer (“Competing Offer”)) or the Company receives a written Competing Proposal, the Board of Directors of Evox the Company may, subject to Section 3.2 and the provisions of this Section 1.4.2.2, at any time prior ‎3.2.2 (but not subject to or in accordance with the Closing Dateprovisions of Section ‎3.2.1 above), cancel or change the Recommendation if and only if it determines in good faith, after taking advice from external legal counsel and financial advisor that the Competing Offer or Competing Proposal, judged as a whole, is superior from a financial point of view to the Offeror’s offer (including to the extent enhanced, as described below), and that therefore it would no longer be in the best interest of the holders of the Outstanding Shares and the Outstanding Equity Instruments to accept the Tender Offer and that failure to cancel or change the Recommendation would be inconsistent with the Board of Directors' Fiduciary Duties; provided that simultaneously with cancelling or changing the Recommendation in accordance with this Section 3.2.2 with respect to a Competing Proposal that is not a Competing Offer, the Company shall enter into a definitive written agreement with respect to such Competing Proposal. Prior to and as a precondition for cancelling or changing its Recommendation in response to a Competing Offer or a Competing Proposal, the Board of Directors of the Company shall (i) comply with its obligations under Section ‎5.2, (ii) promptly notify the Offeror with reasonably detailed information regarding the Competing Offer or the Competing Proposal (including the identity of the offeror, pricing and material terms and conditions), (iii) in good faith considersprovide the Offeror with an opportunity to negotiate with the Board of Directors of the Company about matters arising from the Competing Offer or the Competing Proposal, and (iv) give the Offeror at least four (4) banking days from the earlier of (a) the date of publishing the Competing Offer or (b) the date of informing the Offeror in writing of the other Competing Proposal, to enhance its offer pursuant to this Agreement. The Board of Directors of the Company shall give due consideration to any enhanced offer received from the Offeror pursuant hereto. In the event of any material revisions to the Competing Offer or the Competing Proposal for which notice was previously given by the Company pursuant to the first sentence of this paragraph, the Company shall be required to deliver a new written notice and to comply again with the requirements set forth in the first two sentences of this paragraph, except that the Company shall give the Offeror at least two (2) banking days from the date of publishing the Competing Offer, or from the date of informing the Offeror in writing of the Competing Proposal, to enhance its offer pursuant to this Agreement (rather than the four (4) banking days otherwise contemplated by the first sentence of this paragraph). If a Competing Offer is published or if the Offeror is informed in writing of a Competing Proposal in accordance with the above and Section 5.2 but the Offeror enhances its offer as described above such that the enhanced offer, in the opinion of the Board of Directors of the Company rendered in good faith, after taking advice from reputable external legal counsel and financial advisors advisor, is at least equally favorable to the holders of the Outstanding Shares and comparing the consideration and other terms and conditions, judged Outstanding Equity Instruments as a whole, of the Competing Offer with KEMET’s offer (as possibly enhanced as described below) pursuant to this Agreement, that it would no longer be in the best interest of the Evox shareholders or holders of the Loan Notes to accept the Tender Offer. Notwithstanding anything to the contrary set forth in the preceding paragraph, the Board of Directors of Evox may cancel or change the Recommendation only if prior to such cancellation or change, the Board of Directors of Evox has provided KEMET with a reasonable opportunity to discuss with a representative of the Board of Directors of Evox about matters arising from the Competing Proposal (as defined below) and allowed KEMET five (5) banking days from the date of KEMET having been informed of the identity of the party having made the Competing Proposal as well as of the price and terms and conditions of the Competing Proposal as set forth in Section 3.2, to enhance its offer pursuant to this Agreement. If KEMET would enhance its offer pursuant to the above so as to, in the reasonable opinion of the Board of Directors of Evox rendered in good faith, be at least equally favourable to the shareholders as the Competing Proposal, the Board of Directors of Evox the Company shall confirm and uphold the Recommendation for the Tender Offer, as enhanced.

Competing Offer. Without limiting the generality of the right of the Board of Directors of Evox to cancel or change the Recommendation based upon its Fiduciary Duties, in In the event a third party publishes its decision to offer to purchase any or all Outstanding Shares and the Loan Notes Outstanding Equity Instruments through a public tender offer (“Competing Offer”)) or the Company receives a written Competing Proposal, the Board of Directors of Evox the Company may, subject to Section 3.2 and the provisions of this Section 1.4.2.2, at any time prior 3.2.2 (but not subject to or in accordance with the Closing Dateprovisions of Section 3.2.1 above), cancel or change the Recommendation if and only if it determines in good faith, after taking advice from external legal counsel and financial advisor that the Competing Offer or Competing Proposal, judged as a whole, is superior from a financial point of view to the Offeror’s offer (including to the extent enhanced, as described below), and that therefore it would no longer be in the best interest of the holders of the Outstanding Shares and the Outstanding Equity Instruments to accept the Tender Offer and that failure to cancel or change the Recommendation would be inconsistent with the Board of Directors’ Fiduciary Duties; provided that simultaneously with cancelling or changing the Recommendation in accordance with this Section 3.2.2 with respect to a Competing Proposal that is not a Competing Offer, the Company shall enter into a definitive written agreement with respect to such Competing Proposal. Prior to and as a precondition for cancelling or changing its Recommendation in response to a Competing Offer or a Competing Proposal, the Board of Directors of the Company shall (i) comply with its obligations under Section 5.2, (ii) promptly notify the Offeror with reasonably detailed information regarding the Competing Offer or the Competing Proposal (including the identity of the offeror, pricing and material terms and conditions), (iii) in good faith considersprovide the Offeror with an opportunity to negotiate with the Board of Directors of the Company about matters arising from the Competing Offer or the Competing Proposal, and (iv) give the Offeror at least four (4) banking days from the earlier of (a) the date of publishing the Competing Offer or (b) the date of informing the Offeror in writing of the other Competing Proposal, to enhance its offer pursuant to this Agreement. The Board of Directors of the Company shall give due consideration to any enhanced offer received from the Offeror pursuant hereto. In the event of any material revisions to the Competing Offer or the Competing Proposal for which notice was previously given by the Company pursuant to the first sentence of this paragraph, the Company shall be required to deliver a new written notice and to comply again with the requirements set forth in the first two sentences of this paragraph, except that the Company shall give the Offeror at least two (2) banking days from the date of publishing the Competing Offer, or from the date of informing the Offeror in writing of the Competing Proposal, to enhance its offer pursuant to this Agreement (rather than the four (4) banking days otherwise contemplated by the first sentence of this paragraph). If a Competing Offer is published or if the Offeror is informed in writing of a Competing Proposal in accordance with the above and Section 5.2 but the Offeror enhances its offer as described above such that the enhanced offer, in the opinion of the Board of Directors of the Company rendered in good faith, after taking advice from reputable external legal counsel and financial advisors advisor, is at least equally favorable to the holders of the Outstanding Shares and comparing the consideration and other terms and conditions, judged Outstanding Equity Instruments as a whole, of the Competing Offer with KEMET’s offer (as possibly enhanced as described below) pursuant to this Agreement, that it would no longer be in the best interest of the Evox shareholders or holders of the Loan Notes to accept the Tender Offer. Notwithstanding anything to the contrary set forth in the preceding paragraph, the Board of Directors of Evox may cancel or change the Recommendation only if prior to such cancellation or change, the Board of Directors of Evox has provided KEMET with a reasonable opportunity to discuss with a representative of the Board of Directors of Evox about matters arising from the Competing Proposal (as defined below) and allowed KEMET five (5) banking days from the date of KEMET having been informed of the identity of the party having made the Competing Proposal as well as of the price and terms and conditions of the Competing Proposal as set forth in Section 3.2, to enhance its offer pursuant to this Agreement. If KEMET would enhance its offer pursuant to the above so as to, in the reasonable opinion of the Board of Directors of Evox rendered in good faith, be at least equally favourable to the shareholders as the Competing Proposal, the Board of Directors of Evox the Company shall confirm and uphold the Recommendation for the Tender Offer, as enhanced.