Common use of Competing Transaction Clause in Contracts

Competing Transaction. (a) Except as provided in Section 7.03(c), until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.

Competing Transaction. (a) Except as provided in Section 7.03(c), From the date of this Agreement until the Effective Time orentry of the U.S. Bidding Procedures Order, if earlier, and from the date of the conclusion of the Auction (as defined in the U.S. Bidding Procedures Order) until the Closing Date or termination of this Agreement in accordance with Article IXAgreement, the Company agrees that neither it any Seller nor any Affiliate of any Seller shall, directly or indirectly through any of its Subsidiaries nor any of their respective Representatives willofficers, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not todirectors, directly employees, agents, professional advisors or indirectlyother representatives (collectively, the “Representatives”), (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action engage in discussions or negotiations with respect to facilitate, any inquiries or the making of any proposal or offer from any Person (including without limitation other than the Purchaser or its affiliates) relating to in each case any proposal acquisition, divestiture, recapitalization, business combination or offer to reorganization of or involving all or a substantial part of the Company’s shareholdersbusiness and operations of the Business (a “Competing Transaction”), (ii) furnish any information with respect to, or that may reasonably be expected to lead toparticipate in, or assist, any Competing Transaction, (ii) enter into, maintain, continue effort or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, attempt by any Person to do or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transactionseek the foregoing, (iii) agree to, approve, endorse, recommend, execute, enter into execute any letter of intent or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to agreement providing for a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant seek or support Bankruptcy Court approval of a motion or Order inconsistent with the transactions contemplated herein (provided, however, that nothing contained herein shall prohibit the Sellers from providing any waiverPerson with the Bidding Procedures and related documents, amendment answering questions about the Bidding Procedures or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to announcing the execution of this Agreement or the Auction). Notwithstanding the foregoing, from the date of this Agreement until the entry of the U.S. Bidding Procedures Order, the Sellers may provide continued access to written due diligence materials about the Business in an electronic data room (including written responses to requests for information made after the date hereof), to only such Person or Persons that (A) have access to such electronic data room as of the date hereof and (B) have satisfied the requirements of paragraph (a) of the “Participation Requirements” of the U.S. Bidding Procedures Order within ten (10) Business Days from the date hereof (it being understood that, during such ten (10) Business Day period, the Sellers will be allowed to (x) request such Persons to enter into amendments to their existing confidentiality agreements in order to render them compliant with the requirements of the U.S. Bidding Procedures, (y) discuss and negotiate such amendments with those Persons and (z) execute such amendments, and each such action shall not constitute a breach of this Section 5.29); provided, however, that the Sellers must provide the Purchaser at least equivalent access to all such written due diligence materials. Without prejudice to any other methods or actions that may result in the cure of any breach of this Section 5.29, the Parties acknowledge and agree that in the event that any officer or other employee of any Seller acting alone (without the assistance of outside advisors) in violation of a corporate policy approved by the Companyboard of directors of NNC takes an action that constitutes a breach of clause (i) of this Section 5.29 but does not constitute a breach of any other clause of this Section 5.29, any such breach shall be deemed cured in the event such action ceases and one or more of its Subsidiaries the Sellers notifies the counterparty or any of their Representatives with respect counterparties to a the potential Competing Transaction in writing that the Sellers will not undertake such Competing Transaction. The Company shall promptly request , in each Person case no later than the fifth (5th) day after the Sellers become aware of such breach (for such purposes excluding the knowledge of the employee or officer whose action constitutes such breach), provided that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) action that constituted the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under breach did not involve substantive negotiations regarding the terms of the applicable confidentiality agreementsuch Competing Transaction.

Competing Transaction. (a) Except as provided in Section 7.03(c), From the date of this Agreement until the Effective Time orentry of the U.S. Bidding Procedures Order, if earlier, and from the date of the conclusion of the Auction (as defined in the U.S. Bidding Procedures Order) until the Closing Date or termination of this Agreement in accordance with Article IXAgreement, the Company agrees that neither it any Seller nor any Affiliate of any Seller shall, directly or indirectly through any of its Subsidiaries nor any of their respective Representatives willofficers, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not todirectors, directly employees, agents, professional advisors or indirectlyother representatives (collectively, the “Representatives”), (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action engage in discussions or negotiations with respect to facilitate, any inquiries or the making of any proposal or offer from any Person (including without limitation other than the Purchaser or its affiliates) relating to in each case any proposal or offer to the Company’s shareholderstransaction that would be considered an Alternative Transaction (a “Competing Transaction”), (ii) furnish any information with respect to, or that may reasonably be expected to lead toparticipate in, or assist, any Competing Transaction, (ii) enter into, maintain, continue effort or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, attempt by any Person to do or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transactionseek the foregoing, (iii) agree to, approve, endorse, recommend, execute, enter into execute any letter of intent or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to agreement providing for a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant seek or support Bankruptcy Court approval of a motion or Order inconsistent with the transactions contemplated herein (provided, however, that nothing contained herein shall prohibit the Sellers from providing any waiverPerson with the Bidding Procedures and related documents, amendment answering questions about the Bidding Procedures or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to announcing the execution of this Agreement or the Auction). Notwithstanding the foregoing, from the date of this Agreement until the entry of the U.S. Bidding Procedures Order, the Sellers may provide continued access to written due diligence materials about the Business in an electronic data room (including written responses to requests for information made after the date hereof), to only such Person or Persons (and their representatives) that (A) have access to such electronic data room as of the date hereof and (B) have satisfied the requirements of paragraph (a) of the “Participation Requirements” of the U.S. Bidding Procedures Order within ten (10) Business Days from the date hereof (it being understood that, during such ten (10) Business Day period, the Sellers will be allowed to (x) request such Persons to enter into amendments to their existing confidentiality agreements in order to render them compliant with the requirements of the U.S. Bidding Procedures, (y) discuss and negotiate such amendments with those Persons and (z) execute such amendments, and each such action shall not constitute a breach of this Section 5.29); provided, however, that the Sellers must provide the Purchaser at least equivalent access to all such written due diligence materials. Without prejudice to any other methods or actions that may result in the cure of any breach of this Section 5.29, the Parties acknowledge and agree that in the event that any officer or other employee of any Seller acting alone (without the assistance of outside advisors) in violation of a corporate policy approved by the Companyboard of directors of NNC takes an action that constitutes a breach of clause (i) of this Section 5.29 but does not constitute a breach of any other clause of this Section 5.29, any such breach shall be deemed cured in the event such action ceases and one or more of its Subsidiaries the Sellers notifies the counterparty or any of their Representatives with respect counterparties to a the potential Competing Transaction in writing that the Sellers will not undertake such Competing Transaction. The Company shall promptly request , in each Person case no later than the fifth (5th) day after the Sellers become aware of such breach (for such purposes excluding the knowledge of the employee or officer whose action constitutes such breach), provided that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) action that constituted the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under breach did not involve substantive negotiations regarding the terms of the applicable confidentiality agreementsuch Competing Transaction.

Competing Transaction. (a) Except as provided in Section 7.03(c), This Agreement is subject to approval by the Bankruptcy Court and the consideration by the Company and the Bankruptcy Court of higher or otherwise better competing bids. From and after the date hereof until the Effective Time or, if earlier, earlier of (i) the entry of the Bid Procedures Order and (ii) the termination of this Agreement in accordance with Article IX(the “Exclusivity Period”), neither the Company agrees that neither it nor any Seller Subsidiary or any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not to, representatives or Affiliates shall directly or indirectly, indirectly (ia) solicitnegotiate, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations contact with, or provide solicit or encourage submission of any non-public information inquiries, proposals or data concerning the Company or any Subsidiary tooffers by, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement)Purchaser and its affiliates, (ivagents and representatives) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision transaction (or series of any such confidentiality or standstill agreement or Takeover Statutetransactions), whether direct or (v) resolveindirect, propose concerning a sale, financing, recapitalization, liquidation or agree, or authorize or permit any Representative, to do any other disposition of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries Seller Subsidiary or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring portion thereof (whether by merger, acquisition sale of share or assets or stock, or otherwise), the consummation of which would be substantially inconsistent with the Contemplated Transactions (a “Competing Transaction”), or (b) provide any confidential information regarding the Company, any Seller Subsidiary, the STB Business or any of the Purchased Assets to any Person other than the Purchaser, except to the extent expressly permitted herein. During the Exclusivity Period, the Company will promptly (and in all events within 24 hours) inform and provide a summary to Purchaser of any other offer, proposal or expression of interest for the Company, any Seller Subsidiary or any portion thereof that it or any of its Subsidiariesaffiliates or representatives may receive. Nothing contained herein shall be construed to prohibit the Company and their representatives from soliciting, considering, negotiating, agreeing to return (or if permitted by otherwise taking action in furtherance of, any Competing Transaction after the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms entry of the applicable confidentiality agreementBid Procedures Order; provided, however, neither the Company nor any of its Affiliates or their respective representatives shall provide any Confidential Information to any strategic bidders without appropriate assurances of confidentiality.