Common use of Competing Offer Clause in Contracts

Competing Offer. 15.1.1 Notwithstanding anything to the contrary contained in clauses 3.2 or 14, prior to the End of the Acceptance Period, in the event that the Company receives an unsolicited bona fide written Alternative Proposal (whereby for purposes of this clause, any reference in the definition of "Alternative Proposal" to "twenty percent (20%)" shall be deemed to be a reference to "fifty percent (50%)") that did not result from or arise in connection with a breach of clauses 14 or 15, made by a Person who, in the reasonable opinion of the Company (including the Supervisory Board), is a bona fide third-party and which proposal the Boards determine in good faith, after consultation with their outside legal counsel and financial advisors, would reasonably be expected to become a Competing Offer, then, the Company may take the following actions: (a) the Company shall be permitted to provide non-public information with respect to the Company and its Subsidiaries to the Person(s) making such Alternative Proposal, but only if (A) such Person(s) has entered into a confidentiality agreement with the Company containing terms at least as restrictive to such Person(s) as the terms contained in the Confidentiality Agreement are to the Buyer, and which shall not contain any exclusivity provision or other term that would restrict, in any manner, the Company's ability to consummate the Transactions or to comply with its disclosure obligations to the Buyer pursuant to this Agreement and (B) prior to or contemporaneously with furnishing any such non-public information to such Person(s), it furnishes such non-public information to the Buyer to the extent the Buyer has not previously been provided with such information; and (b) the Company shall be permitted to consider such Alternative Proposal and engage in discussions or negotiations regarding such Alternative Proposal. 15.1.2 In addition to the obligations of the Company set forth in clauses 14 and 15, as promptly as practicable (and in any event within forty-eight (48) hours) after receipt of any Alternative Proposal or any request for non-public information or any inquiry that would reasonably be expected to lead to any Alternative Proposal, the Company shall provide the Buyer with written notice of the material terms and conditions of such Alternative Proposal, request or 69 / 107 inquiry, and the identity of the Person(s) making any such Alternative Proposal, request or inquiry, if not previously provided. Commencing upon the provision of any notice referred to above and continuing until such Alternative Proposal, request or inquiry is withdrawn, (i) the Company (or its outside legal counsel) shall keep the Buyer (or its outside legal counsel) reasonably informed regarding the status and material terms (including changes to the material terms) of discussions and negotiations relating to any such Alternative Proposal, request or inquiry (and within forty-eight (48) hours of any changes to the status or material terms thereof) and (ii) the Company shall, as promptly as practicable (and in any event within forty-eight (48) hours following the receipt or delivery thereof), provide the Buyer (or its outside legal counsel) with unredacted copies of all written materials, proposals or proposed transaction agreements (including all schedules and exhibits thereto) relating to any such Alternative Proposal.

Competing Offer. 15.1.1 Notwithstanding anything to the contrary contained in clauses 3.2 or 14For purposes of Clause 12 and this Clause 13, prior to the End a "Competing Offer" is a written proposal meeting all of the Acceptance Period, in following conditions: 13.1.1. the event that the Company receives an unsolicited Potential Competing Offer is a bona fide unsolicited written Alternative Proposal comprising (whereby i) a (public) offer for purposes (i) all or substantially all (representing more than 80%) of this clausethe Shares, any reference (ii) all or substantially all (representing more than 80%) of the Group’s business or assets, (iii) a legal merger (or reverse takeover) of the Company with a third party resulting in the definition control over all or substantially all (representing more than 80%) of "Alternative Proposal" to "twenty percent the Shares or the Group’s business or assets or (20%)" shall be deemed to be a reference to "fifty percent (50%)"iv) that did not result from or arise in connection with a breach of clauses 14 or 15another unsolicited, written proposal made by a Person who, bona fide third party that would result in a change of control of the Company or involve all or substantially all (representing more than 80%) of the Group’s business or assets; 13.1.2. in the reasonable opinion of the Company (including Board, taking into account its fiduciary duties and having consulted with, and taking into account the Supervisory Board)advice of, is a bona fide third-party its outside financial advisor and which proposal the Boards determine in good faith, after consultation with their outside legal counsel and financial advisors, would reasonably be expected to become the Alternative Proposal is, on balance, a Competing Offer, then, the Company may take the following actions: (a) the Company shall be permitted to provide non-public information with respect to more beneficial offer or transaction for the Company and the sustainable success of its Subsidiaries business, taking into the interests of its shareholders, employees and other stakeholders than the Transaction as contemplated in this Merger Protocol, specifically taking into account the identity and track record of such third party, the consideration to be received by the Person(s) making such Alternative Proposalholders of Shares, certainty of execution (including, but only if (A) such Person(s) has entered into a confidentiality agreement with the Company containing terms at least as restrictive to such Person(s) as the terms contained in the Confidentiality Agreement are to the Buyernot limited to, certainty of funding and which shall not contain any exclusivity provision or other term that would restrictanti-trust clearances), in any manner, the Company's ability to consummate the Transactions or to comply with its disclosure obligations to the Buyer pursuant to this Agreement conditionality and (B) prior to or contemporaneously with furnishing any such non-public information to such Person(s), it furnishes such non-public information to the Buyer to the extent the Buyer has not previously been provided with such information; and (bfinancial covenants) the Company shall be permitted to consider such Alternative Proposal and engage in discussions or negotiations regarding such Alternative Proposal. 15.1.2 In addition to the obligations of the Company set forth in clauses 14 and 15, as promptly as practicable (and in any event within forty-eight (48) hours) after receipt of any Alternative Proposal or any request for non-public information or any inquiry that would reasonably be expected to lead to any Alternative Proposal, the Company shall provide the Buyer with written notice of the material other terms and conditions of the offer, taking into account any terms proposed by the Offeror after being notified pursuant to 13.2; and 13.1.3. the total consideration payable to the holders of Shares in connection with such Alternative Proposal, request or 69 / 107 inquiryPotential Competing Offer exceeds the Offer Price by at least ten percent (10%) and is fully in cash, and to the identity extent that the Competing Offer is an offer for all or substantially all of the Person(sbusiness or assets of the Group, the calculation shall be made on the basis of the net proceeds (before any applicable taxes) making any such Alternative Proposal, request or inquiry, if not previously provided. Commencing upon the provision of any notice referred to above and continuing until such Alternative Proposal, request or inquiry is withdrawn, (i) the Company (or its outside legal counsel) shall keep the Buyer (or its outside legal counsel) reasonably informed regarding the status and material terms (including changes be distributed to the material terms) of discussions and negotiations relating Shareholders resulting from such a transaction (to any such Alternative Proposal, request or inquiry (and within forty-eight (48) hours of any changes to be valued as at the status or material terms thereof) and (ii) the Company shall, as promptly as practicable (and in any event within forty-eight (48) hours first trading day on Euronext Amsterdam following the receipt or delivery thereof), provide execution of the Buyer (or its outside legal counselMerger Protocol) with unredacted copies of all written materials, proposals or proposed transaction agreements (including all schedules and exhibits thereto) relating to any such Alternative Proposalcalculated on a per Share basis.

Competing Offer. 15.1.1 Notwithstanding anything to 11.1 For the contrary contained in clauses 3.2 purpose of this Clause, a “Competing Offer” is a bona fide Alternative Proposal that provides for an offer of 50% (fifty per cent.) or 14, prior to the End more of the Acceptance Period, in the event Shares or a proposal for a legal merger (juridische fusie) that would involve a change of control of the Company receives an unsolicited bona fide written Alternative Proposal (whereby for purposes a “Change of this clause, any reference in the definition of "Alternative Proposal" to "twenty percent (20%)" shall be deemed to be a reference to "fifty percent (50%)"Control Offer”) that did not result from or arise in connection with a breach of clauses 14 or 15, made by a Person whothat, in the reasonable opinion of the Company (including the Supervisory Board), is a bona fide third-party and which proposal the Boards determine in good faith, after consultation with their the Company’s outside legal counsel and financial advisorsadvisers, and acting in good faith, is reasonably capable of being consummated, taking into account all legal, financial, regulatory, timing, and similar aspects of, and conditions to, that Alternative Proposal (including, without limitation, the absence of further due diligence requirements, the certainty of financing and the identity and track record of the person making the proposal), and that, if consummated, would reasonably result in a transaction more favourable to the Company, the Company’s business and the Company’s stakeholders than the transaction contemplated by this Merger Protocol (after giving effect to any adjustments to the terms and provisions of this Merger Protocol that the Offeror may, but shall not be expected required to become propose, in response to such Competing Offer, without prejudice to the procedure set out in Clause 11.2), whereby the consideration per Ordinary Share offered in such Competing Offer must exceed the Ordinary Share Consideration by at least EUR 1.0. 11.2 In the event that the Supervisory Board concludes in accordance with Clause 10.8.1 that an Alternative Proposal constitutes or has resulted in a Competing Offer, thenthe following steps shall be completed: 11.2.1 the Company shall promptly (in any event within 24 (twenty-four) hours) inform the Offeror of such event in writing by a notice setting out the information referred to in Clause 11.1 (such notice in writing hereinafter the “Notice”); 11.2.2 The Offeror shall have 10 (ten) Business Days following the date on which it has received the Notice in respect of a Competing Offer (it being understood that any material changes to the Competing Offer shall give rise to a new 10 (ten) Business Days period) to communicate to the Chairman of the Supervisory Board a revision of the Offer made on terms and conditions which, in the reasonable opinion of the Supervisory Board, are at least as favourable to the Company, the Company’s business and the Company’s stakeholders as the Competing Offer as set forth in the Notice (“Revised Offer”); 11.2.3 If, the Company may take is, and has at all times been, in compliance with Clauses 10 and 11 and within 10 (ten) Business Days after its receipt of the following actions: (a) Notice the Offeror fails to communicate a Revised Offer or has indicated in writing that it will not communicate a Revised Offer, and the Boards inform the Offeror in writing of their intention, provided that their fiduciary duties towards the shareholders of the Company require them to do so, to recommend the Competing Offer, the Company shall be permitted entitled to provide non-public information terminate this Merger Protocol, with respect immediate effect and without prejudice to Clause 14.4. If the Company does not elect to terminate this Merger Protocol within 2 (two) Business Days after it has become entitled to do so, or the Boards do not inform the Offeror of their intention to recommend the Competing Offer, the Offeror shall have the right to require the Company and its Subsidiaries the Boards to the Person(s) making such Alternative Proposal, but only if (A) such Person(s) has entered into a confidentiality agreement with the Company containing terms at least as restrictive to such Person(s) as the terms contained in the Confidentiality Agreement are to the Buyer, and which shall not contain any exclusivity provision or other term that would restrict, in any manner, the Company's ability to consummate the Transactions or to comply with its disclosure obligations to the Buyer pursuant to this Agreement and (B) prior to or contemporaneously with furnishing any such non-public information to such Person(s), it furnishes such non-public information to the Buyer to the extent the Buyer has not previously been provided with such information; and (b) the Company shall be permitted to consider such Alternative Proposal and engage in discussions or negotiations regarding such Alternative Proposal. 15.1.2 In addition to the obligations of the Company set forth in clauses 14 and 15, as promptly as practicable (and in any event within forty24 (twenty-eight (48four) hours) after receipt reaffirm their support and recommendation of any Alternative Proposal or any request for non-public information or any inquiry that would reasonably be expected to lead to any Alternative Proposalthe Offer as contemplated in this Merger Protocol. If details of the Competing Offer have become public, the Company and the Boards shall provide do so by way of a public announcement. Should the Buyer with written notice Company and the Boards fail to reaffirm their support and recommendation of the material terms and conditions of such Alternative ProposalOffer within 24 (twenty-four) hours after having received the relevant request from the Offeror, request or 69 / 107 inquirythe Offeror shall have the right to terminate this Merger Protocol, without prejudice to Clause 14.4; and 11.2.4 if the Offeror announces a Revised Offer to the Supervisory Board in accordance with Clause 11.2.2, the Company may not terminate this Merger Protocol and the identity Company shall continue to be bound by their respective rights and obligations of the Person(s) making any such Alternative Proposalthis Merger Protocol (including, request or inquirywithout limitation, if not previously provided. Commencing upon the provision of any notice referred to above and continuing until such Alternative ProposalClause 10), request or inquiry is withdrawn, (i) the Company (or its outside legal counsel) shall keep the Buyer (or its outside legal counsel) reasonably informed regarding the status and material terms (including changes to the material terms) of discussions and negotiations relating in relation to any such Alternative Proposal, request or inquiry (and within forty-eight (48) hours of any changes to the status or material terms thereof) and (ii) the Company shall, as promptly as practicable (and in any event within forty-eight (48) hours following the receipt or delivery thereof), provide the Buyer (or its outside legal counsel) with unredacted copies of all written materials, proposals or proposed transaction agreements (including all schedules and exhibits thereto) relating future Competing Offer. 11.3 This Clause 11 applies mutatis mutandis to any such Alternative Proposalconsecutive Competing Offer.

Competing Offer. 15.1.1 Notwithstanding anything to the contrary contained in clauses 3.2 or 14, prior to the End of the Acceptance Period, in the event that the Company receives an unsolicited bona fide written Alternative Proposal (whereby for purposes of this clause, any reference in the definition of "“Alternative Proposal" ” to "“twenty percent (20%)" ” shall be deemed to be a reference to "“fifty percent (50%)"”) that did not result from or arise in connection with a breach of clauses 14 or 15, made by a Person who, in the reasonable opinion of the Company (including the Supervisory Board), is a bona fide third-party and which proposal the Boards determine in good faith, after consultation with their outside legal counsel and financial advisors, would reasonably be expected to become a Competing Offer, then, the Company may take the following actions: (a) the Company shall be permitted to provide non-public information with respect to the Company and its Subsidiaries to the Person(s) making such Alternative Proposal, but only if (A) such Person(s) has entered into a confidentiality agreement with the Company containing terms at least as restrictive to such Person(s) as the terms contained in the Confidentiality Agreement are to the Buyer, and which shall not contain any exclusivity provision or other term that would restrict, in any manner, the Company's ’s ability to consummate the Transactions or to comply with its disclosure obligations to the Buyer pursuant to this Agreement and (B) prior to or contemporaneously with furnishing any such non-public information to such Person(s), it furnishes such non-public information to the Buyer to the extent the Buyer has not previously been provided with such information; and (b) the Company shall be permitted to consider such Alternative Proposal and engage in discussions or negotiations regarding such Alternative Proposal. 15.1.2 In addition to the obligations of the Company set forth in clauses 14 and 15, as promptly as practicable (and in any event within forty-eight (48) hours) after receipt of any Alternative Proposal or any request for non-public information or any inquiry that would reasonably be expected to lead to any Alternative Proposal, the Company shall provide the Buyer with written notice of the material terms and conditions of such Alternative Proposal, request or 69 / 107 inquiry, and the identity of the Person(s) making any such Alternative Proposal, request or 69 / 107 inquiry, if not previously provided. Commencing upon the provision of any notice referred to above and continuing until such Alternative Proposal, request or inquiry is withdrawn, (i) the Company (or its outside legal counsel) shall keep the Buyer (or its outside legal counsel) reasonably informed regarding the status and material terms (including changes to the material terms) of discussions and negotiations relating to any such Alternative Proposal, request or inquiry (and within forty-eight (48) hours of any changes to the status or material terms thereof) and (ii) the Company shall, as promptly as practicable (and in any event within forty-eight (48) hours following the receipt or delivery thereof), provide the Buyer (or its outside legal counsel) with unredacted copies of all written materials, proposals or proposed transaction agreements (including all schedules and exhibits thereto) relating to any such Alternative Proposal.