Common use of Competing Transaction Clause in Contracts

Competing Transaction. (i) Except as may be agreed in writing by Parent and Clearday and subject to Section 5.6, during the Exclusivity Period, no party nor any Subsidiary of a party shall, nor shall it authorize or permit, directly or indirectly, any officer, director, employee, agent, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of a party or any other Subsidiary of a party to (x) initiate, solicit, knowingly encourage or facilitate (including by way of furnishing nonpublic information or assistance) any inquiries or the making of any proposal or offer or other action, including any proposal or offer to its stockholders that constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (y) engage in, continue or otherwise participate in any discussions or negotiations with any Person regarding, or furnish in furtherance of such inquiries or to obtain a Competing Transaction, or (z) otherwise enter into or effectuate a Competing Transaction. Each party shall take, and shall cause each Subsidiary of such party to take, all actions reasonably necessary to cause their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates to, immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction; provided, that nothing in this sentence shall preclude Parent or Clearday, as the case may be, or any Subsidiary of such Person or their respective officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates from complying with the provisions of Section 5.5(a)(ii). Each party and each Subsidiary of such party shall be responsible for any failure on the part of their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates to comply with this Section 5.5(a). Each party acknowledges that, effective as of the date of this Agreement, the other party waives all standstill or similar provisions of any agreement, letter or understanding for the benefit of it or any of its Subsidiaries that would in any way prohibit any Person from making or otherwise facilitate the making of a proposal with respect to a Competing Transaction. Each party represents and warrants that neither it nor any of its Affiliates is currently engaged in any Competing Transaction.

Competing Transaction. (i) Except as may be agreed in writing by Parent and Clearday Gadsden in a supplement to this Agreement and subject to Section 5.6, during the Exclusivity Period, no party nor any Subsidiary of a party shall, nor shall it authorize or permit, directly or indirectly, any officer, director, employee, agent, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of a party or any other Subsidiary of a party to (x) initiate, solicit, knowingly encourage or facilitate (including by way of furnishing nonpublic information or assistance) any inquiries or the making of any proposal or offer or other action, including any proposal or offer to its stockholders that constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (y) engage in, continue or otherwise participate in any discussions or negotiations with any Person regarding, or furnish in furtherance of such inquiries or to obtain a Competing Transaction, or (z) otherwise enter into or effectuate a Competing Transaction. Each party shall take, and shall cause each Subsidiary of such party to take, all actions reasonably necessary to cause their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates to, immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction; provided, that nothing in this sentence shall preclude Parent or CleardayGadsden, as the case may be, or any Subsidiary of such Person or their respective officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates from complying with the provisions of Section 5.5(a)(ii). Each party and each Subsidiary of such party shall be responsible for any failure on the part of their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates to comply with this Section 5.5(a). Each party acknowledges that, effective as of the date of this Agreement, the other party waives all standstill or similar provisions of any agreement, letter or understanding for the benefit of it or any of its Subsidiaries that would in any way prohibit any Person from making or otherwise facilitate the making of a proposal with respect to a Competing Transaction. Each party represents and warrants that neither it nor any of its Affiliates is currently engaged in any Competing Transaction.

Competing Transaction. (a) Each Debtor and each of Seller Parent and Seller agrees that (i) Except as may be agreed in writing between the date hereof and the date the Bidding Procedures Order is entered by Parent the Bankruptcy Court and Clearday (ii) from and subject to Section 5.6after the date that the Auction is declared closed by Seller, during the Exclusivity PeriodSeller will not, no party nor any Subsidiary of a party shalland will not permit its Affiliates or its or their respective officers, nor shall it authorize directors, agents or permitrepresentatives to, directly or indirectly, (A) initiate contact with, or solicit or encourage submission of any officerinquiries, directorproposals or offers by, employee, agent, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of any Person with respect to a party or any other Subsidiary of a party to (x) initiate, solicit, knowingly encourage or facilitate Competing Transaction (including by way of furnishing nonpublic information a Back-Up Plan) or assistance) otherwise facilitate any inquiries effort or the making of any attempt to make a proposal or offer or other actionwith respect to a Competing Transaction (including a Back-Up Plan), including any proposal or offer to its stockholders that constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (yB) engage in, continue or otherwise participate in any discussions or negotiations with any Person regarding, or furnish in furtherance of such inquiries provide any non-public information or data to obtain any Person relating to, any Competing Transaction (including a Competing TransactionBack-Up Plan), or (zC) otherwise enter into or effectuate seek to enter into any agreement with respect to, make any Filings in furtherance of, or negotiate in any respect, a Competing Transaction. Each party shall takeTransaction (including a Back-Up Plan), and shall cause each Subsidiary of such party (D) request to take, all actions reasonably necessary to cause amend or waive this Section 10.1(a); provided that Seller and its Affiliates or its or their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders representatives and any other agents, representatives or Affiliates agents may provide materials and information (“Participation Materials”) to, immediately cease and enter into discussions and negotiations with, Interested Parties or Potential Bidders (as defined in the Bidding Procedures) to the extent expressly permitted by and in accordance with the Bidding Procedures. Until the entry of the Bidding Procedures Order, Seller agrees that it will promptly (and, in any discussionsevent, negotiations within 24 hours) notify Purchaser if any inquiries, proposals or communications with any party or parties offers with respect to a Competing Transaction are received by, any Competing Transaction; provided, that nothing in this sentence shall preclude Parent or Clearday, as the case may besuch information is requested from, or any Subsidiary such discussions or negotiation are sought to be initiated or continued with, it or any of such Person its Affiliates or their respective officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives its or Affiliates from complying with the provisions of Section 5.5(a)(ii). Each party and each Subsidiary of such party shall be responsible for any failure on the part of their respective officers, directors, employeesagents or representatives indicating, investment bankersin connection with such notice, financial advisorsthe name of such Person and the material terms and conditions of any proposals or offers (including, attorneysif applicable, brokerscopies of any written requests, finders proposals or offers, including proposed agreements) and any other agentsthereafter shall keep Purchaser informed, representatives or Affiliates to comply with this Section 5.5(a). Each party acknowledges thaton a current basis, effective as of the date of this Agreement, the other party waives all standstill or similar provisions status and terms of any agreementsuch proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, letter if any, including any change in the Debtors’ or understanding for the benefit of it or any of its Subsidiaries that would in any way prohibit any Person from making or otherwise facilitate the making of a proposal with respect to a Competing Transaction. Each party represents and warrants that neither it nor any of its Affiliates is currently engaged in any Competing TransactionSeller Parent’s intentions as previously notified.