Common use of Matching right Clause in Contracts

Matching right. 13.1 Notwithstanding anything in this Agreement to the contrary but without prejudice to the other provisions of this Agreement, at any time prior to the Offer Closing Date, the Interxion Board may take any of the actions listed in Clause 12.1(b)(i) in respect only of an Interxion Superior Proposal if: (a) the Interxion Board, having consulted with its legal and financial advisers, acting reasonably and in good faith, determines that a bona fide written Competing Proposal that did not result from a breach of this Agreement by Interxion constitutes an Interxion Superior Proposal, in which case it shall (in addition to its obligations pursuant to Clause 12.1, and for such time as the restrictions in Clause 12.1 apply) confirm to Telecity in writing (an Interxion Superior Proposal Notice) immediately that such Competing Proposal constitutes an Interxion Superior Proposal and provide the material details of such Competing Proposal that led the Interxion Board to determine that it constitutes an Interxion Superior Proposal (in particular the offer price contained in the Interxion Superior Proposal); and (b) the Interxion Board shall not recommend, or agree to recommend, any Competing Proposal (whether or not it is an Interxion Superior Proposal) prior to 5.00 p.m. on the third Business Day after the date of the Interxion Superior Proposal Notice. 13.2 If Telecity confirms in writing to either the Interxion Board or Interxion’s financial adviser before 5.00 p.m. on the third Business Day after the date of the Interxion Superior Proposal Notice that it intends to match (or exceed) the Interxion Superior Proposal and its revised offer is determined by the Interxion Board in its sole discretion, having consulted its external financial and legal advisers and acting in good faith and observing their obligations under Dutch law, to be at least equal to the value from a financial point of view to each Interxion Shareholder as the Interxion Superior Proposal, then the Interxion Board shall not recommend the Interxion Superior Proposal. 13.3 Notwithstanding anything in this Agreement to the contrary but without prejudice to the other terms of this Agreement, at any time prior to the Offer Closing Date, the Telecity Board may take any of the actions listed in Clause 12.1(b)(i) in respect only of a Telecity Superior Proposal if the Telecity Board, having consulted with its legal and financial advisers, acting reasonably and in good faith, determines that a bona fide written Competing Proposal that did not result from a breach of this Agreement by Telecity constitutes a Telecity Superior Proposal.

Matching right. 13.1 Notwithstanding anything in this Agreement to 11.1 The Offeror may amend the contrary but without prejudice to terms of the other provisions of this Agreement, Proposal at any time prior and from time to time in accordance with the Clause 11 (subject always to the Offer Closing Date, the Interxion Board may take any provisions of the actions listed in Clause 12.1(b)(iCode and/or with the consent of the Panel). 11.2 The Company agrees that if the Directors determine (whether before or after the Proposal is formally announced for the purposes of Rule 2.5 of the Code) in respect only of an Interxion Superior Proposal if: (a) the Interxion Board, having consulted with its legal and financial advisers, acting reasonably and in good faith, determines that any Independent Competing Offer may constitute a bona fide written Competing Proposal that did not result from a breach of this Agreement by Interxion constitutes an Interxion Superior Proposal, in which case it shall (in addition to its obligations pursuant to Clause 12.1, and for such time as the restrictions in Clause 12.1 apply) Company will promptly confirm to Telecity the Offeror in writing (an Interxion a “Superior Proposal Notice”) immediately that such Independent Competing Proposal constitutes an Interxion Offer may constitute a Superior Proposal and Proposal, provide the Offeror with the material details of such Independent Competing Proposal Offer that led the Interxion Board Directors to determine that it constitutes an Interxion such Independent Competing Offer constituted a Superior Proposal (in particular including, but not limited to, the offer price and nature of consideration contained in and, subject to any confidentiality obligations, the Interxion identity of any persons involved in the Superior Proposal); and (b) , and notify the Interxion Board shall not recommend, or agree Offeror that it has convened a meeting of the Directors to recommend, any Competing Proposal (consider whether or not it is an Interxion to recommend the Superior Proposal) prior to 5.00 p.m. Proposal and of the time and date of such meeting (which will be no sooner than midday on the third Business Day after the date of the Interxion Superior Proposal Notice) (the “Recommendation Board Meeting”). 11.3 Subject to the Code, the Company agrees to procure that the Directors will not recommend any Independent Competing Offer (whether or not such Independent Competing Offer is a Superior Proposal and whether before or after a formal announcement pursuant to Rule 2.5 of the Code is made by or on behalf of the Offeror) until the Recommendation Board Meeting. 11.4 If: 11.4.1 the Offeror confirms to the Company by no later than 5.00 p.m. on the Business Day prior to the Recommendation Board Meeting, that it intends to increase the Offer to a price per Company Share equal to or greater than that provided under the Superior Proposal, or to make an offer or proposal which would, in the reasonable opinion of Company’s financial advisor, provide equal or superior financial value to Company shareholders in comparison to such Superior Proposal (the “Revised Offer”); and 11.4.2 the Offeror confirms to either the Directors or the Company’s financial adviser prior to the Recommendation Board Meeting that it is ready to announce, or announces, the Revised Offer, the Directors will make a unanimous and unqualified recommendation of the Revised Offer to the Company Shareholders and the Offeror will be entitled to refer to such recommendation in its announcement of the Revised Offer and the Directors will not recommend the Superior Proposal set out in the Superior Proposal Notice. 13.2 11.5 If Telecity confirms a “competitive situation” arises pursuant to Rule 32.5 of the Code in writing relation to either the Interxion Board Offeror and a third party or Interxionparties, the Company, the Directors and the Company’s financial adviser before 5.00 p.m. on will use all reasonable endeavours to ensure that the third Business Day after the date of the Interxion Superior Proposal Notice that it intends to match (or exceed) the Interxion Superior Proposal and its revised offer is auction procedure determined by the Interxion Board Panel will give effect to and be consistent with the Offeror’s rights and the obligations of the Company pursuant to this Clause 11. Subject to the Code and the Panel’s comments and requirements, the Company will, and will procure that, the Directors and the Company’s financial adviser will, to the extent practicable, keep the Offeror fully informed of any discussions with the Panel including providing copies of all submissions to the Panel in relation to the auction procedure under Rule 32.5 of the Code and will have prior consultation with the Offeror in respect of all discussions and submissions to the Panel by the Company, the Directors or the Company’s financial adviser. 11.6 If the Panel imposes an auction procedure that would require the Company to breach any of its sole discretion, having consulted its external financial and legal advisers and acting in good faith and observing their obligations under Dutch law, to be at least equal to the value from a financial point of view to each Interxion Shareholder as the Interxion Superior Proposal, then the Interxion Board shall not recommend the Interxion Superior Proposal. 13.3 Notwithstanding anything in this Agreement to the contrary but without prejudice to the other terms of this Agreement, at any time prior to the Offer Closing Date, Offeror and the Telecity Board may take any of Company agree that the actions listed in Clause 12.1(b)(i) in respect only of a Telecity Superior Proposal if the Telecity Board, having consulted with its legal and financial advisers, acting reasonably and in good faith, determines that a bona fide written Competing Proposal that did not result from a breach relevant provisions of this Agreement will be amended solely to the extent required to permit the Company to comply with the auction procedure imposed by Telecity constitutes a Telecity Superior Proposalthe Panel pursuant to Rule 32.5 of the Code.