Common use of Closing Material Adverse Effect Clause in Contracts

Closing Material Adverse Effect. 9.12.1. In the event either ConAgra or Acquisition LP notifies the other party of an occurrence of a Closing Material Adverse Effect, then Acquisition LP shall have six (6) business days from the receipt of such notice in which to notify ConAgra if Acquisition LP waives its rights under Section 10.2(d) and Section 11.1(f) with respect to such Closing Material Adverse Effect. If Acquisition LP does not elect to make such waiver, then, if after the date of the occurrence of such Closing Material Adverse Effect, ConAgra should receive an unsolicited, bona fide inquiry from an unrelated third party to acquire the Businesses ("Acquisition Proposal") that ConAgra's Board of Directors has in good faith concluded (following the receipt of the advice of its outside legal counsel and its financial advisors) is, or is reasonably likely to result in, a Superior Offer (as defined in Section 9.12.2), ConAgra may then take the following actions: (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 party, it gives Acquisition LP written notice of its intention to furnish nonpublic information and (2) it receives from the 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 its 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 furnishes such nonpublic information to Acquisition LP (to the extent such nonpublic information has not been previously so furnished); and (ii) engage in negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with entering into negotiations with such third party, it gives Acquisition LP written notice of its intention to enter into negotiations with such third party. Thereafter ConAgra shall provide Acquisition LP as promptly as practicable oral and written notice setting forth all such information as is reasonably necessary to keep Acquisition LP informed in all material respects of the status of any such Acquisition Proposal. In the event that the Board of Directors of ConAgra determines that such Acquisition Proposal is a Superior Offer, it shall promptly give Acquisition LP notice of such determination and Acquisition LP shall have two (2) business days from the receipt of such notice in which to waive such Closing Material Adverse Effect as a Closing condition pursuant to Section 10.2(d) and as a termination right pursuant to Section 11.1(f). In the event Acquisition LP does not waive such Closing Material Adverse Effect as a Closing condition and termination right, ConAgra shall have the right at any time within four (4) business days from its notice to Acquisition LP to terminate this Agreement contemporaneously with entering into definitive documents with respect to such Superior Offer and tendering payment to Acquisition LP, in immediately available funds such amount as may be required to reimburse Acquisition LP and its Affiliates and partners for all out-of-pocket fees, costs and expenses incurred by any of them in connection with their due diligence efforts or the transactions (including, without limitation, the preparation and negotiation of documentation) contemplated in the Transaction Documents or in the Senior Bank Commitment Letter and Bridge Commitment Letter, including, without limitation, (A) fees, costs and expenses of accountants, escrow agents, counsel, financial advisors and other similar advisors, (B) fees paid to any Governmental Authority, and (C) fees, costs and expenses paid or payable to third parties under the Senior Bank Commitment Letter and Bridge Commitment Letter or in connection with the transactions contemplated therein (collectively, the "Termination Fee").