Fiduciary Out. (a) Except as set forth in this Section 6.02(a), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders, the Board of Directors or such committee may withdraw or modify its approval or recommendation of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover Proposal. In evaluating any unsolicited Takeover Proposal, the Company's Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "
Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Company Party or the board of directors, board of managers, or similar governing body of any Company Party (the aforementioned parties collectively as to the Company Parties, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law; provided that counsel to the Company Parties shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Backstop Parties following a determination made in accordance with this Section 7.1 to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.
Fiduciary Out. (a) Notwithstanding the provisions of Section 7.2 above, nothing contained in this Agreement shall prevent MIS or its Board of Directors, from (A) furnishing non-public information, or entering into discussions or negotiations, with, any person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, if and only to the extent that (1) the Board of Directors of MIS believes in good faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and, after taking into account the strategic benefits anticipated to be derived from the Merger and long-term prospects of MIS and VPC as a combined company, such Acquisition Proposal would, if consummated, result in a transaction significantly more favorable over the long term than the Transactions, and MIS's Board of Directors determines in good faith after receipt of an opinion from outside legal counsel to the effect that such action is likely necessary for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person or entity, the MIS Board of Directors receives from such Person an executed confidentiality agreement with terms no more favorable to such Person than those contained in this Agreement; or (B) complying with 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Without limiting Section 7.3 above, MIS shall give written notice to VPC as soon as possible of any Acquisition Proposal that the MIS Board of Directors determines meets the standards set forth in this Agreement and whether MIS will exercise its right to use such Acquisition Proposal as a fiduciary out. Notice from MIS to VPC of its election to use such Acquisition Proposal as a fiduciary out shall mean that this Agreement is terminated and a termination fee is payable by MIS pursuant to Section 7.5 hereof.
Fiduciary Out. On or before 3 Banking Days after the date that the Borrowers file their Plan of Reorganization, the Borrowers shall have filed an application for approval of the Fiduciary Out.
Fiduciary Out. Nothing in this Agreement shall prohibit the Company (either directly or indirectly through advisors, agents or intermediaries) from (i) furnishing information pursuant to an appropriate confidentiality letter concerning the Company and its businesses, properties or assets to a third party who has made a bona fide Alternative Transaction Proposal, (ii) engaging in discussions or negotiations with any such third party who has made a bona fide Alternative Transaction Proposal, (iii) following receipt of a bona fide Alternative Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Securities Exchange Act of 1934, as amended, or otherwise making a disclosure to stockholders, and/or (iv) following receipt of a bona fide Alternative Transaction Proposal, failing to make or withdrawing or modifying its recommendation that the stockholders of the Company approve the Merger, in each case referred to in the foregoing clauses (i)-(iv), to the extent the Board of Directors of the Company shall have concluded that such action or actions are required to satisfy its fiduciary duties to the Company and its stockholders under applicable Delaware Law. For the purpose of this Agreement, “Alternative Transaction Proposal” means any offer or proposal for any transaction or series of related transactions other than the transactions contemplated by this Agreement involving: (i) (A) any merger, arrangement, consolidation, share exchange, business combination, recapitalization, tender offer, exchange offer or other similar transaction involving any of the Company or its Subsidiaries, (B) any transaction in which a person or group of persons directly or indirectly acquires beneficial ownership of securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries, or (C) any transaction in which any of the Company or its Subsidiaries issues securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries; (ii) any sale, lease, exchange, transfer, license, or disposition of any business or businesses or assets that constitute or account for 10% or more of the consolidated net revenues, net income or assets of any of the Company or its Subsidiaries; or (iii) any liquidation or dissolution of any of the Company or its Subsidiaries. Notwithstanding anything to the contrary in this Agreement (i) the Company shall ...
Fiduciary Out. Clauses 11.3 and 11.4 do not apply to the extent that they restrict QMS or any QMS Director from taking or refusing to take any action with respect to a Competing Proposal (in relation to which there has been no contravention of this clause 11) provided that:
Fiduciary Out. The restrictions in clauses 10.3, 10.4(a) and 10.4(b) and the obligations in clause 10.5(b) do not apply to the extent they restrict BigAir or any BigAir director from taking or refusing to take any action with respect to a Competing Proposal (in relation to which there has been no contravention of this clause 10) provided that:
Fiduciary Out. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require any Debtor or the board of directors, board of managers, or similar governing body of any Debtor (the aforementioned parties collectively as to the Debtors, “Fiduciaries”), in each case, acting in their capacity as such, to take any action or to refrain from taking any action to the extent such Fiduciary determines, after consulting with counsel, that taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, including based on the results of the Independent Investigation; provided that counsel to the Debtors shall give notice not later than two (2) Business Days following such determination (with email being sufficient) (a “Fiduciary Out Notice”), to counsel to the Initial Equity Commitment Parties and counsel to the 2016 Lender Equity Commitment Parties following a determination made in accordance with this Section 7.1 to take or not take action, in each case in a manner that would result in a breach of this Agreement. This Section 7.1 shall not be deemed to amend, supplement or otherwise modify, or constitute a waiver of any Party’s rights to terminate this Agreement pursuant to Article X or Section 7.1 of this Agreement that may arise as a result of any such action or inaction.
Fiduciary Out. Nothing in these Bidding Procedures will require the Debtors to take any action, or refrain from taking any action, with respect to these Bidding Procedures to the extent the Debtors determine that taking such action, or refraining from taking such action, as applicable, is required or appropriate to comply with applicable law or their fiduciary obligations. EXHIBIT D DIP CREDIT AGREEMENT SENIOR SECURED SUPER-PRIORITY PRIMING TERM LOAN DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as of February [__], 2023, among Starry Group Holdings, Inc., as a Borrower, the other Borrowers party hereto from time to time, the Lenders party hereto from time to time and ArrowMark Agency Services LLC, as Administrative Agent TABLE OF CONTENTS Page ARTICLE I Definitions 1 SECTION 1.01. Defined Terms 1 SECTION 1.01. Terms Generally 28 SECTION 1.02. Accounting Terms; GAAP 28 SECTION 1.03. Currency Translation 29 ARTICLE II The Facilities 29 SECTION 2.01. Commitments; Roll-Up 29 SECTION 2.02. Loans and Borrowings 30 SECTION 2.03. Requests for Borrowings 31 SECTION 2.04. Funding of Borrowings 31 SECTION 2.05. Termination and Reduction of Commitments 31 SECTION 2.06. Repayment of Loans; Evidence of Debt 32 SECTION 2.07. Conversion into Exit Facility; Repayment on Maturity Date 32 SECTION 2.08. Prepayment of Loans 33 SECTION 2.09. Fees 34 SECTION 2.10. Interest 34 SECTION 2.11. [Reserved] 35 SECTION 2.12. Increased Costs 35 SECTION 2.13. [Reserved.] 36 SECTION 2.14. Taxes 36 SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs; Application of Proceeds 39 SECTION 2.16. Mitigation Obligations; Replacement of Lenders 41 SECTION 2.17. Defaulting Lenders 42 SECTION 2.18. Borrower Representative 43 ARTICLE III Representations and Warranties 43 SECTION 3.01. Organization; Powers 43 SECTION 3.02. Authorization; Enforceability 43 SECTION 3.03. Governmental Approvals; Absence of Conflicts 43 SECTION 3.04. Financial Condition; No Material Adverse Effect 44 SECTION 3.05. Properties 45 i SECTION 3.06. Litigation and Environmental Matters 45 SECTION 3.07. Compliance with Laws and Agreements 46 SECTION 3.08. Investment Company Act 46 SECTION 3.09. Taxes 46 SECTION 3.10. ERISA; Labor Matters 46 SECTION 3.11. Subsidiaries and Joint Ventures; Ownership; Disqualified Equity Interests 47 SECTION 3.12. Insurance 47 SECTION 3.13. [Reserved] 47 SECTION 3.14. Disclosure 47 SECTION 3.15. Collateral Matters 48 SECTION 3.16. Federal Reserve Regulations 49 SECTION 3.17. Material Contracts 4...
Fiduciary Out. The Company or Newco may terminate this Agreement by written notice to the Purchaser if: (i) the Company or Newco is prepared to enter into a binding agreement relating to an Alternative Proposal, (ii) the Company or Newco gives the Purchaser notice of the terms of such Alternative Proposal at least five days prior to such termination, (iii) if such Alternative Proposal involves the purchase of shares of beneficial interest in the Company or shares of Common Stock in Newco substantially equal to the number of Shares, the per share purchase price under such Alternative Proposal exceeds $2.85 and the Alternative Proposal is on substantially the same terms and conditions as this Agreement, (iv) the Board of Trustees of the Company or the Board of Directors of Newco has concluded, based upon advice of legal counsel with input from an investment banker, that the failure to enter into a binding agreement relating to an Alternative Proposal might reasonably be expected to subject the Company's trustees or Newco's directors, as the case may be, to liability for breach of their fiduciary duties to the Company's or Newco's shareholders, and (v) the fee referred to in Section 6.2(c) of this Agreement is received by the Purchaser on or before such termination.
