Exclusivity. (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals. (b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Silver Crest Acquisition Corp), Merger Agreement (Silver Crest Acquisition Corp)
Exclusivity. (a) During the Interim Period, the Company Seller shall not, and shall cause not authorize or permit any of its Affiliates or any of its or their Representatives and Subsidiaries not to, directly or indirectly, (i) encourage, solicit, initiate, solicit facilitate or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (continue inquiries regarding an “Alternative Transaction Acquisition Proposal”), ; (ii) engage enter into discussions or participate in negotiations with, or provide any discussionsinformation to, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Person concerning a possible Acquisition Proposal, ; or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal agreements or other agreement instruments (whether or instrumentnot binding) related regarding an Acquisition Proposal. Seller shall immediately cease and cause to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shallterminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and Subsidiaries cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, cease or that could lead to, an Acquisition Proposal. For purposes hereof, "Acquisition Proposal" means any and all existing negotiations inquiry, proposal or discussions with offer from any person or group of persons Person (other than SPAC and Buyer or any of its RepresentativesAffiliates) regarding an Alternative Transaction Proposal. During relating to the Interim Perioddirect or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Company will not confidentially submit Target Business or the Purchased Assets.
(b) In addition to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in other obligations under this Section 8.03(a) to the contrary6.06, the Company Seller shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24three Business Days after receipt thereof by Seller or its Representatives) hours) after the Company has determined advise Buyer orally and in writing of any Acquisition Proposal, any request for information with respect to pursue the Permitted Equity Financing any Acquisition Proposal, or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments inquiry with respect to or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to any business combination transaction between SPAC result in an Acquisition Proposal, the material terms and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”)conditions of such request, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Acquisition Proposal or inquiry, and the identity of the Person making the same.
(c) Seller agrees that may reasonably be expected to lead to the rights and remedies for noncompliance with this Section 6.06 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such SPAC Alternative Transaction Proposal, breach or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and threatened breach shall cause its Representatives irreparable injury to Buyer and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalthat money damages would not provide an adequate remedy to Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Micronet Enertec Technologies, Inc.), Asset Purchase Agreement (Micronet Enertec Technologies, Inc.)
Exclusivity. (a) During the Interim Periodterm of this Agreement, the Company neither Seller nor any of its Affiliates shall, nor shall notit authorize or permit any of its officers, and shall cause its Representatives and Subsidiaries not todirectors or employees or any investment banker, directly financial advisor, attorney, accountant or indirectly, (i) other representative retained by it or any of their respective Affiliates to initiate, solicit or solicit, encourage (including by way of providing confidential furnishing information), or non-public information) take any inquiriesother action to facilitate, proposals any inquiries or offers that constitute the making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 10.6 hereof), or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain an Acquisition Proposal, or agree to or endorse any Acquisition Proposal, and Seller shall notify Purchaser orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any purchase inquiries and proposals which it or any of shares its Affiliates or other Equity Securities any of their respective representatives or agents may receive; provided, however, that (i) Seller and its Affiliates may furnish or cause to be furnished confidential and non-public information concerning Seller and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the Company or material portion of the assets of the Company letter agreement entered into between FBR Capital Markets & Co., as Seller’s agent, and its Subsidiaries (on a consolidated basis) or any mergerPurchaser dated ▇▇▇▇▇ ▇, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”▇▇▇▇), (ii▇▇) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any following the execution of such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter Seller may engage in discussions or negotiations with a third party executing such an agreement, (iii) following receipt of intentan Acquisition Proposal, term sheetSeller may take and disclose to its shareholders a position with respect to such Acquisition Proposal, indication including, if such Acquisition Proposal is a tender offer, Seller’s Board of interestDirectors may take and disclose to its shareholders a position contemplated by Rule 14e-2 under the Securities Exchange Act of 1934, indicative and/or (iv) following receipt of an Acquisition Proposal, Seller’s Board of Directors may withdraw or modify its recommendation to shareholders, but in each case referred to in the foregoing clauses (i) through (iv) only to the extent that Seller’s Board of Directors shall conclude in good faith (on the basis of advice from outside counsel) that such action is required in order for Seller’s Board of Directors to satisfy their respective fiduciary obligations under applicable law; provided, further, that Seller’s Board of Directors shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after reasonable notice to and consultation with Purchaser with respect to such action and that Seller’s Board of Directors shall continue to consult with Purchaser after taking such action and, in addition, if Seller’s Board of Directors receives an Acquisition Proposal or any request for confidential and non-public information or for access to the properties, books or records of Seller for the purpose of making, or in connection with, an Acquisition Proposal, then Seller shall promptly inform Purchaser as provided above of the terms and conditions of such proposal or other agreement request and the identity of the person making it. Seller will immediately cease and cause to be terminated any existing activities, discussions or instrument) related negotiations with any parties conducted prior to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance date of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed with respect to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Acquisition Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During Without limiting the Interim Periodforegoing, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) it is understood that any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation violation of the Transactions shall not be deemed a violation restrictions set forth in the first sentence of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC 5.4(a) by any employee, officer or director or authorized employee, agent or representative of Seller or any of its Representatives Affiliates (including, without limitation, any investment banker, financial advisor, attorney or the Sponsor receive accountant or other representative retained by Seller or any offer of its Affiliates) or communication in respect otherwise shall be deemed to be a breach of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalSection 5.4 by Seller.
Appears in 2 contracts
Sources: Branch Purchase and Assumption Agreement (Green Bancorp, Inc.), Branch Purchase and Assumption Agreement (Green Bancorp, Inc.)
Exclusivity. (a) During The Company agrees that after the Interim Perioddate hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company it shall not, and it shall cause its Representatives Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (ib) initiate, solicit continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage (including by way any inquiries or the making of providing confidential any proposal that constitutes, or non-public information) any inquiries, proposals or offers that constitute or may reasonably could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of shares or other Equity Securities of the Company or material portion business, at least 51% of the assets of the Company and its Subsidiaries (on Subsidiaries, taken as a consolidated basis) whole, or any merger, business combination or other similar transaction the majority of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter capital stock of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalTransactions.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Exclusivity. (a) During the Interim PeriodPrior to January 31, the Company shall 2001, EMI will not, and shall cause nor will it permit any of its Representatives and Subsidiaries not toofficers, directly directors, employees, advisors or indirectly, representatives to (i) initiatesolicit, solicit initiate or knowingly encourage the submission of or (including ii) take any other action to knowingly encourage, any inquiries or the making of any proposal regarding the acquisition by way a third party of any equity securities of EMI (other than options issued in the ordinary course of business) or greater than 30% of the consolidated total assets of EMI; provided, however, that this paragraph shall not prohibit EMI from (i) responding to any unsolicited requests, inquiries or proposals that it may receive from any third party, providing confidential information to such third parties, negotiating, entering into or non-public information) any inquiries, proposals performing definitive agreements with such third parties or offers that constitute or may reasonably be expected recommending a transaction with such third party to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)shareholders, (ii) engage carrying out its obligations under applicable law or participate in rules, the English Takeover Code and the rules of any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, applicable securities exchange or (iii) enter into any agreement or deliver any agreement or instrument ordinary course discussions with the investment community. EMI will notify TWI immediately upon the receipt of a Competing EMI Proposal (as defined below) (including a confidentiality agreementthe material terms thereof and the identity of the Person making such Competing EMI Proposal), letter upon any determination by EMI to engage in discussions with such Person and of intent, term sheet, indication any change to the material terms of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction such Competing EMI Proposal and will keep TWI generally informed of the status of such Competing EMI Proposal; provided provided, however, that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not any such notification by EMI will be deemed a violation of this Section 8.03(a) and (y) nothing kept in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted strict confidence by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsTWI.
(b) During the Interim PeriodPrior to January 31, SPAC shall 2001, TWI will not, and shall cause nor will it permit any of its Representatives and the Sponsor not toofficers, directly directors, employees, advisors or indirectly, representatives to (i) initiatesolicit, solicit initiate or knowingly encourage the submission of or (including ii) take any other action to knowingly encourage, any inquiries or the making of any proposal regarding the acquisition by way a third party of providing confidential or non-public informationgreater than 30% of the consolidated total assets of the Warner Music Business; provided, however, that this paragraph shall not prohibit TWI from (i) any inquiries, proposals or offers that constitute or may reasonably be expected to lead responding to any business combination transaction between SPAC and unsolicited requests, inquiries or proposals that it may receive from any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”)third party, (ii) engage carrying out its obligations under applicable law or participate in rules, and the rules of any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, applicable securities exchange or (iii) enter into any agreement or deliver any agreement or instrument ordinary course discussions with the investment community. TWI will notify EMI immediately upon the receipt of a Competing Warner Proposal (as defined below) (including a confidentiality agreementthe material terms thereof and the identity of the Person making such Competing Warner Proposal), letter upon any determination by TWI to engage in discussions with such Person and of intent, term sheet, indication any change to the initial terms of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction such Competing Warner Proposal; provided provided, however, that the execution, delivery and performance of any such notification by TWI shall be kept in strict confidence by EMI.
(c) In this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.letter agreement:
Appears in 1 contract
Exclusivity. (a) During A. From the Interim Periodeffective date of this Agreement, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company Cragar and its Subsidiaries officer will not engage any other person or entity to serve as its agent or representative to provide services similar to those to be provided by MCC through the term of this Agreement without the prior written consent of MCC.
B. If for a period of one (on a consolidated basis1) or year after the expiration of this Agreement, ▇▇▇▇▇▇ desires to commence any merger, business combination or other similar transaction of the Company or its Subsidiaries Transaction (an “Alternative Transaction Proposal”as hereinafter defined), (ii) engage MCC shall have the right of first refusal to act as ▇▇▇▇▇▇’s financial advisors to arrange for placement agents or participate in any discussionsunderwriters, negotiations or transactions as the case may be, with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead respect to any such Alternative Transaction Proposalor Transactions. This first right of refusal must be exercised by MCC, in writing, within ten (10) business days following written notice of the Transaction from Cragar and, if not so elected, shall be deemed waived by MCC. For purposes of this Agreement, the term “Transaction” shall include each of the following; the purchase, sale, merger, consolidation or any other business combination, in one or a series of transactions, involving Cragar, or (iii) enter into any agreement sale of securities of Cragar or deliver a New Entity, as described below, effected pursuant to a private sale or an underwritten public offering.
▇. ▇▇ ▇▇▇▇▇▇ decides to actively pursue any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposalsuch Transaction, and MCC exercises its right of first refusal provided hereunder, MCC and ▇▇▇▇▇▇ will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in within ten (10) business days following MCC’s written exercise of its first right of refusal appropriate to the form of the Company Shareholder Lock-Up circumstances, containing provisions for, among other things, compensation, indemnification, contribution, and Support Agreement (excluding Article VI therein)representations and warranties, which shall also contain a are usual and customary voting provision in which such Person for similar agreements. ▇▇▇▇▇▇ agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor that it will not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement such Transaction unless, MCC has waived its right of first refusal with respect thereto or deliver any agreement prior to or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and simultaneously with the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in such Transaction, adequate provision is made with respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereofpayment of compensation to MCC, and SPAC shallas contemplated hereby. CRAGAR INDUSTRIES, and shall cause its Representatives and the Sponsor toINC. November 9, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.2001
Appears in 1 contract
Exclusivity. (a) 5.1 During the Interim Periodprosecution of the Services, TVAE and Panattoni agree to use all commercially reasonable efforts and negotiate in good faith in order to reach an EPC Agreement on or before October 1, 2007 which includes general terms and conditions approved by Panattoni, and under which Panattoni would become the Company EPC contractor for the Project and enter into a Delta T Subcontract with Delta T, for a fixed price and under arrangements to be agreed to by the Parties. TVAE shall timely provide and cause Delta T to provide all approvals, decisions and other information which Panattoni requires to perform such Services, in order to expedite such negotiations. Accordingly, during the term of this Agreement TVAE shall not, and shall cause its Representatives and Subsidiaries not topermit Delta T any other party associated with the Project, to enter into, negotiate toward, or take any other action in furtherance of entering into any agreement for any engineering, and/or procurement and/or construction agreement for the Project.
5.2 In order to promote the successful commercial operation of the Project, the Parties agree that, during the continuance in force of this Agreement or any EPC Agreement entered into by the Parties, and, in the event the Parties enter into an EPC Agreement, for a period of two (2) year(s) following completion of the Project, neither Party shall, directly or indirectly, (i) initiatecollaborate or make any other agreements or arrangements with third parties relating to the engineering, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalprocurement, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect construction of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person ethanol manufacturing facility (other than the Company) (a “SPAC Alternative Transaction Proposal”Project), within a sixty (ii60) engage or participate mile radius of the Site. For the avoidance of doubt, the foregoing restriction shall not apply following 180 days after completion of the Services hereunder, in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) the event the Parties do not enter into an EPC Agreement prior to the expiration of such 180 day period.
5.3 Notwithstanding the foregoing obligation to act in good faith and use all commercially reasonable efforts to enter into a definitive EPC Agreement, and notwithstanding any agreement past, present or deliver future approvals by the management or the board of directors of either Party to the proposed EPC Agreement or any agreement other past, present or instrument (including a confidentiality agreementfuture indications of assent, letter of intentit is agreed that neither TVAE nor Panattoni, term sheet, indication of interest, indicative proposal or other agreement or instrument) nor any person related to either such Party, will be under any SPAC Alternative Transaction Proposal; provided that legally binding obligation with respect to the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation terms of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives EPC Agreement or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons Project (other than the Company scope of this Agreement), and its Representatives) regarding no offer or binding commitment of any nature whatever shall be implied, unless and until a SPAC Alternative Transaction Proposalformal, definitive EPC Agreement has been negotiated, prepared, executed and delivered by the Parties, which provides for the supply by Panattoni of engineering, procurement and construction, personnel training, commissioning, start-up and testing services, containing and other detailed terms, covenants, conditions, representations, warranties and indemnities.
Appears in 1 contract
Sources: Preliminary Engineering Services and Exclusivity Agreement (Tennessee Valley Agri-Energy, LLC)
Exclusivity. (a) During the Interim Period, the Company shall notnot take, and nor shall cause it permit any of its Affiliates or Representatives and Subsidiaries not toto take, whether directly or indirectly, any action to solicit, initiate or engage in discussions or negotiations with, or enter into any agreement with, or encourage, or provide information to, any Person (iother than Buyer or any of its Affiliates or Representatives or the party described on Schedule 9.03 (the “Specified Third Party”) initiate, solicit or encourage its Representatives concerning a potential transaction involving the Company and the Specified Third Party (including by way of providing confidential or non-public informationa “Specified Third Party Transaction”)) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to concerning any purchase of shares or other Equity Securities any of the Company Company’s equity securities or material portion the issuance and sale of the assets of the Company and its Subsidiaries (on a consolidated basis) any securities of, or any mergermembership interests in, business combination or other similar transaction of the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries) or any merger or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions and any Specified Third Party Transaction, an “Alternative Transaction ProposalAcquisition Transaction”); provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions (iior any Specified Third Party Transaction) engage shall not be deemed a violation of this Section 9.03(a). The Company shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or participate in any discussions, negotiations or transactions with any third party regarding Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) The Company shall use commercially reasonable efforts to keep Buyer reasonably informed in a reasonably timely manner of any Alternative material discussions and/or developments in connection with any Specified Third Party Transaction, including the material terms and conditions of any proposed Specified Third Party Transaction Proposal and any material amendments or modifications to the terms of such Specified Third Party Transaction (it being understood and agreed that any changes to the purchase price of such Specified Third Party Transaction shall be deemed to be material amendments or modifications). Buyer shall keep such information confidential pursuant to the terms of the Confidentiality Agreement.
(c) Notwithstanding anything to the contrary set forth in this Section 9.03, at any time prior to the Closing Date, the Company may reasonably be expected elect to lead terminate this Agreement pursuant to and subject to the terms of Section 11.01(g) and Section 11.03 in order to enter into a Specified Third Party Definitive Agreement; provided, that, prior to entering into any such Alternative Transaction ProposalSpecified Third Party Definitive Agreement, the Company must have delivered notice to Buyer of its intention to enter into such definitive agreement at least three (3) Business Days prior to the taking of such action by the Company.
(d) During the Interim Period, Buyer shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or (iii) enter into any agreement with, or deliver encourage, respond, provide information to or commence due diligence with respect to, any agreement Person (other than the Company, its shareholders or instrument (including a confidentiality agreementany of their Affiliates or Representatives), letter of intentconcerning, term sheetrelating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, indicative proposal written or other agreement or instrument) related oral relating to any Alternative Transaction Business Combination (a “Business Combination Proposal”) other than with the Company, its shareholders and their respective Affiliates and Representatives; provided that (x) provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.019.03(d). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company Buyer shall, and shall cause its Affiliates and Representatives and Subsidiaries to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the date hereof with respect to, or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit which is reasonably likely to give rise to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryresult in, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsBusiness Combination Proposal.
(be) During the Interim Period, SPAC shall not, and shall cause its Representatives Each of Buyer and the Sponsor not toCompany acknowledges and agrees that, directly or indirectly, (i) initiate, solicit or encourage (including by way for purposes of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (determining whether a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation breach of this Section 8.03(b). SPAC agrees 9.03 has occurred, the actions of such party’s Affiliates and Representatives shall be deemed to promptly notify be the Company if SPAC or any actions of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposalsuch party, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and such party shall cause its Representatives and the Sponsor to, cease be responsible for any and all existing negotiations or discussions with any person or group breach of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalthis Section 9.03 by such Persons.
Appears in 1 contract
Sources: Merger Agreement (Mudrick Capital Acquisition Corp. II)
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement, the Company shall not, and shall cause its Representatives each Subsidiary and Subsidiaries each of their respective directors, officers, employees, financial advisors, representatives and agents not to, directly or indirectly, (i) solicit, initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, or encourage discussion or negotiations or transactions with any third party regarding Person or entity (other than Purchaser) concerning any Alternative Transaction Proposal merger, consolidation, sale of material assets, tender offer for, recapitalization of or that may reasonably be expected to lead to accumulation or acquisition of securities issued by Company or any such Alternative Transaction ProposalSubsidiary, proxy solicitation, other business combination involving Company or any Subsidiary or any other plan of reorganization of Company or any Subsidiary (including, without limitation, any Employee Stock Ownership Plan structure) (collectively, "Alterative Transaction"), or (iiiii) enter into provide any agreement non-public information concerning the business, properties or deliver assets of Company or any agreement Subsidiary to any Person or instrument entity (including a confidentiality agreementother than to Purchaser). Company shall, letter and shall cause each of intentits Subsidiaries to, term sheetimmediately cease any and all existing activities, indication of interest, indicative proposal or discussions and negotiations with any Person other agreement or instrument) related than Purchaser with respect to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any continue indefinitely the confirmation hearing for their pending reorganization and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding liquidation plans involving an Alternative Transaction ProposalEmployee Stock Ownership Plan. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted immediately notify Purchaser of, and shall disclose to undertake the Permitted Equity Financing if (and only if)Purchaser all details of, (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals discussions or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially described in the form first sentence of this Section 6.10. The provisions of this Section 6.10 are referred to in this Agreement as the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals"Exclusivity Provisions."
(b) During Notwithstanding the Interim Periodprovisions of subsection (a) above, SPAC prior to entry of the Confirmation Orders, the Debtors may, to the extent required by the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee, or any orders entered or approvals or authorizations granted by the Bankruptcy Court in the Case during the period prior to Closing (collectively, the "Bankruptcy Related Requirements"), or to the extent that the board of directors of Company determines, in good faith after consultation with outside legal counsel, that such board's fiduciary duties under applicable Governmental Rule require it to do so, participate in discussions or negotiations with, and, subject to the requirements of subsection (c) below, furnish information to any Person, entity or group after such Person, entity or group has delivered to the Debtors, in writing, an unsolicited bona fide offer to effect an Alternative Transaction that the board of directors of Company in its good faith judgment determines, after consultation with its independent financial advisors, would result in a transaction more favorable to the stakeholders of the Debtors from a financial point of view than the transactions contemplated hereby and for which financing, to the extent required, is then committed (or which, in the good faith judgment of the board of directors, is reasonably capable of being obtained) and which (in the good faith judgment of the board of directors) is likely to be consummated (a "Superior Proposal"). In the event the Debtors receive a Superior Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the board of directors of Company from approving such Superior Proposal or requesting authorization of such Superior Proposal from the Bankruptcy Court, if such board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties under applicable Governmental Rule; and in such case, the board of directors of Company may terminate this Agreement pursuant to Section 11.1(f) hereof; provided, however, that Company shall not terminate this Agreement until at least five (5) Business Days after Purchaser's receipt of a copy of such Superior Proposal.
(c) Debtors shall, within one (1) Business Day of the occurrence thereof, notify Purchaser orally and in writing of the receipt of a Superior Proposal. Such notice to Purchaser shall indicate in reasonable detail the identity of the potential acquirer and the material terms and conditions of such Superior Proposal, to the extent known.
(d) Notwithstanding anything to the contrary in this Section 6.10, Company shall not, and shall cause each of its Representatives and the Sponsor Subsidiaries not to, directly or indirectly, provide any non-public information to a third party unless: (i) initiate, solicit or encourage (including by way of providing confidential or Company and its Subsidiaries provide such non-public information) any inquiries, proposals information pursuant to a non-disclosure agreement entered into subsequent to the date hereof with terms regarding the protection of confidential information at least as restrictive as such terms in the Confidentiality Agreement or offers that constitute or may reasonably be expected pursuant to lead to any business combination transaction between SPAC confidentiality agreements existing on the date hereof; and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage such non-public information has been delivered previously or participate made available to Purchaser.
(e) Notwithstanding anything to the contrary in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees 6.10, Company shall be permitted to promptly notify continue the Company if SPAC or any solicitation of expressions of interest in its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalinternational operations.
Appears in 1 contract
Sources: Investment and Purchase Agreement (Covanta Energy Corp)
Exclusivity. (a) During Integrated Media agrees that it, prior to the Interim PeriodEffective Time, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any director, officer, employee or agent of, or any investment banker, attorney, accountant or other advisor or representative of, Integrated Media or any of its subsidiaries (icollectively, the “Integrated Media Representatives”) to, directly or indirectly through another Person, solicit, initiate, solicit encourage, induce or encourage (including by way facilitate the making, submission or announcement of providing confidential any Acquisition Proposal, or non-public information) participate in any inquiriesdiscussions or negotiations regarding, proposals or offers furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or may would reasonably be expected to lead to to, any purchase Acquisition Proposal, or approve, endorse or recommend any Acquisition Proposal, or enter into any letter of shares intent, agreement in principle, acquisition agreement or other Equity Securities document or contract contemplating or otherwise relating to an Acquisition Proposal, provided, however, that, the foregoing shall not prohibit Integrated Media from furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide proposal to enter into a business combination with Integrated Media pursuant to an Acquisition Proposal which the board of the Company or material portion directors of the assets of the Company and its Subsidiaries Integrated Media (on a consolidated basis) or any merger, business combination or other similar transaction committee thereof considering such proposal) in good faith determines is reasonably likely to be more favorable to the stockholders of Integrated Media than the Company or its Subsidiaries transactions contemplated by this Agreement (an a “Alternative Transaction Superior Proposal”), so long as:
(i) prior to furnishing any information to, or entering into discussions or negotiations with such a Person, Integrated Media provides twenty- four (24) hours’ advance written notice to TeleChem to the effect that it is furnishing information to, or entering into substantive discussions or negotiations with, a Person from whom Integrated Media shall have received an executed confidentiality agreement in form and substance satisfactory to TeleChem prior to furnishing such information;
(ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction such notice shall include the terms and conditions of such Acquisition Proposal or that may reasonably be expected any agreement proposed by, or any information supplied to, any such Person;
(iii) prior to lead furnishing any nonpublic information to any such Alternative Transaction ProposalPerson, or Integrated Media furnishes such nonpublic information to TeleChem (iiito the extent that such nonpublic information has not been previously furnished by Integrated Media to TeleChem);
(iv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or neither Integrated Media nor any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or subsidiaries nor any of its the Integrated Media Representatives or Subsidiaries receive shall have violated any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything restrictions set forth in this Section 8.03(a5.07;
(v) such unsolicited bona fide proposal relating to a Superior Proposal is made by a third party that the contrary, board of directors of Integrated Media (or any committee thereof considering such proposal) determines in good faith has the Company shall be permitted good faith intent to undertake proceed with negotiations to consider such Superior Proposal;
(vi) the Permitted Equity Financing if board of directors of Integrated Media (and only ifor any committee thereof considering such proposal), after duly considering the written advice of outside legal counsel to Integrated Media, determines in good faith that such action is required for the Board of Directors of Integrated Media to comply with its fiduciary duties to stockholders imposed by applicable law; and
(1vii) none Integrated Media keeps TeleChem informed in all material respects of the Company, its Subsidiaries, status and terms of any such negotiations or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage discussions (including by way without limitation the identity of providing confidential the Person with whom such negotiations or non-public informationdiscussions are being held) and provides TeleChem copies of such written proposals and any amendments or revisions thereto or correspondence related thereto.
(b) Integrated Media shall notify TeleChem orally and in writing of the fact that it has received inquiries, offers or proposals or offers that are intended it reasonably believes to lead be bona fide with respect to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event an Acquisition Proposal within twenty-four (24) hours) hours after the Company has determined receipt thereof. Integrated Media will immediately cease and cause to pursue be terminated any existing activities, discussions or negotiations with any other Person that have been conducted heretofore with respect to a potential Acquisition Proposal. Integrated Media agrees to inform the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis Integrated Media Representatives of the statusobligations undertaken in this Section 5.07; provided, discussionshowever, negotiations and terms (including that nothing contained in this Agreement shall prevent the board of directors of Integrated Media from referring any developments, amendments or proposed amendments third-party to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsthis Section 5.07.
(bc) During Integrated Media agrees not to release or permit the Interim Periodrelease of any Person from, SPAC shall notor to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which Integrated Media or any of its subsidiaries is a party, and will use its best efforts to enforce or cause to be enforced each such agreement at the request of TeleChem.
(d) Except as expressly permitted by this Section 5.07, neither the board of directors of Integrated Media nor any committee thereof shall cause its Representatives and (A) withdraw, modify or change, or propose publicly to withdraw, modify or change, in a manner adverse to TeleChem, the Sponsor not toapproval by such board of directors or such committee of the board of directors, directly approving or indirectlytaking such action with respect to the Merger or this Agreement, (iB) initiateapprove or recommend, solicit or encourage (including by way of providing confidential propose publicly to approve or non-public information) recommend, any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Superior Proposal or that may reasonably be expected (C) cause Integrated Media to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheetagreement in principle, indication of interest, indicative proposal acquisition agreement or other similar agreement or instrument(each, an “Acquisition Agreement”) related to any SPAC Alternative Transaction Acquisition Proposal; provided . Notwithstanding the foregoing, in the event that the executionBoard of Directors of Integrated Media (or any committee thereof considering an Acquisition Proposal) determines in good faith, delivery after consultation with outside counsel, that in light of a Superior Proposal it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the stockholders of Integrated Media under applicable law, the board of directors of Integrated Media may (subject to this and performance the following sentences) withdraw, modify or change its recommendation of the Merger, but only after twenty-four (24) hours following TeleChem’s receipt of written notice advising TeleChem that the board of directors of Integrated Media is prepared to do so, and only if, during such twenty-four (24) hour period, Integrated Media and its advisors shall have negotiated in good faith with TeleChem to make such adjustments in the terms and conditions of this Agreement as would enable TeleChem to proceed with the transactions contemplated herein on such adjusted terms.
(e) Nothing contained in this Section 5.07 shall prohibit Integrated Media from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and/or 14e-2(a) promulgated under the other Transaction Agreements and Exchange Act or from making any disclosure to the consummation stockholders of Integrated Media if, in the good faith judgment of the Transactions shall not board of directors of Integrated Media, after consultation with outside counsel, failure so to disclose would be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of inconsistent with its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalobligations under applicable law.
Appears in 1 contract
Exclusivity. (a) During From and after the Interim Perioddate hereof through and including the Closing Date or the earlier termination of this Agreement, the Company shall notCompanies will not solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of all or substantially all of the capital stock or assets of either Company, including any acquisition structured as a merger, consolidation, or share exchange (an "Acquisition Proposal"), and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead will cease negotiations with respect to any purchase of shares or other Equity Securities of Acquisition Proposals. Notwithstanding the Company or material portion of the assets of the Company foregoing, Barrier and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or directors and officers will remain free to participate in any discussionsdiscussions or negotiations regarding, negotiations furnish any information with respect to, assist or transactions with participate in, or facilitate in any third party regarding other manner any Alternative Transaction Proposal effort or attempt by any Person to do or seek any of the foregoing to the extent Barrier's Board of Directors concludes in good faith, after having taken into account the advice of its outside legal counsel, that may reasonably be expected the fiduciary duties of the directors or officers, as applicable, to lead the shareholders of Barrier require them to do so; provided, that, the directors and officers shall not take any such Alternative Transaction of the foregoing actions without having given at least three (3) Business Days' advance written notice to Parent. In addition, if any director or officer receives an Acquisition Proposal, Barrier shall promptly inform Parent in writing of the material terms of such proposal and the identity of the Person (or group) making it.
(iiib) enter into It is understood that any agreement violation of the restrictions set forth in this Section 5.7 by any director or deliver officer of the Companies or by any agreement or instrument (including a confidentiality agreementinvestment banker, letter of intentfinancial adviser, term sheetattorney, indication of interestaccountant, indicative proposal or other agreement representative of the Companies shall be deemed to be a breach of this Section 5.7 by the Companies.
(c) In the event that an Acquisition Proposal shall have been made known to Barrier or instrumentshall have been made directly to its shareholders generally or any Person shall have announced an intention (whether or not conditional) related to make an Acquisition Proposal, and thereafter this Agreement is terminated by Barrier for any Alternative Transaction reason and an Acquisition Proposal is consummated within eighteen (18) months of such termination, then Barrier shall pay to Parent, upon the consummation of such Acquisition Proposal, a termination fee equal to $1,000,000 in cash; provided that this Section 5.7(c) shall not apply if this Agreement is terminated pursuant to Section 7.1(d) following a vote of the Shareholders to approve this Agreement and the Merger in which each director of Barrier who is a Shareholder votes his or her Barrier Shares (xand any Barrier Shares owned by entities controlled by such director) the execution, delivery and performance in favor of this Agreement and the other Transaction Agreements and Merger but the consummation of the Transactions shall Requisite Shareholder Approval is not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsobtained.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the Company Each Seller shall not, and shall use its commercially reasonable efforts to cause its Representatives Subsidiaries and Subsidiaries each of its directors, officers, employees, representatives and agents not to, directly or indirectly, (i) initiateencourage, solicit or encourage initiate any proposal or offer from any person or entity (other than the Buyer or an affiliate, associate, representative or agent of the Buyer) concerning any merger, consolidation, sale of material assets, tender offer, recapitalization, accumulation of shares of stock of any Seller, proxy solicitation or other business combination involving Seller or any Subsidiary or any division of any Seller or any Subsidiary or any of their respective businesses relating to the Acquired Assets and the Assigned Contracts and Leases (an "Alternative Proposal"), or (a) agree to, endorse or take any other action to facilitate an Alternative Proposal unless such Alternative Proposal has been approved by the Bankruptcy Court pursuant to the Section 363 sale process contemplated by this Agreement or (b) provide any non-public information concerning the business, properties or assets of any Seller to any person or entity (other than the Buyer); PROVIDED, HOWEVER, that the Sellers shall not be prohibited from giving notice or providing information, including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities persons who may seek to make a proposal as part of the Company or material portion Section 363 sale process contemplated by this Agreement (the "Exclusivity Provision"); PROVIDED, HOWEVER, that notwithstanding the foregoing, the Sellers shall be entitled to give such notice of whatever buyer protections and/or bidding procedures order as the assets of the Company Bankruptcy Court requires to respond to and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding discuss any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (to provide information, including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to due diligence materials and negotiate and discuss any Alternative Transaction Proposal; provided that (x) . The Sellers shall immediately notify the executionBuyer of, delivery and performance shall disclose to the Buyer a reasonably detailed description of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (any inquiries received by any Seller or any of its Subsidiariesagents or representatives (including, without limitation, the date of such inquiry, the identity of the inquirer and the status of such inquiry) with respect to take the acquisition of any action that is otherwise prohibited or restricted of the Acquired Assets and the Sellers shall provide the Buyer with copies of any written proposals and a description of any verbal proposals which are received by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company Sellers or any of its Representatives agents or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposalrepresentatives. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth Nothing in this Section 8.03(a) to 4.7 shall require the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none divulgence of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way identity of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and making an Alternative Proposal in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions Confidential Agreement with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalsuch third party.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the The Company agrees that it shall not, and shall cause its Representatives Subsidiaries and Subsidiaries its and its Subsidiaries' officers, directors, agents and advisors and affiliates not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential inquiries or non-public information) any inquiriesproposals with respect to, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalconcerning, or (iii) enter into provide any agreement confidential information to, or deliver have any agreement discussions with, any person relating to, any Acquisition Proposal. It shall immediately cease and cause to be terminated any activities, discussions or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related negotiations conducted prior to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance date of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or with any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01)parties. The Company agrees to shall promptly notify SPAC if advise Compass following the receipt by the Company or any of its Representatives or Subsidiaries receive of any offer or communication in respect Acquisition Proposal and the substance thereof (including the identity of an Alternative Transaction the person making such Acquisition Proposal), and will promptly communicate advise Compass of any developments with respect to SPAC in reasonable detail such Acquisition Proposal immediately upon the terms and substance occurrence thereof. For purposes of this Section 6.6 an "Acquisition Proposal" means any tender or exchange offer, and proposal for a merger, consolidation or other business combination or similar transaction involving the Company shallor its Subsidiaries or any proposal or offer to purchase or acquire in any manner all or a majority of the voting ownership, and beneficial ownership or right to vote securities in, or a majority of the assets or deposits of the Company or any of its Subsidiaries, other than the transaction contemplated by this Agreement, provided, however, that nothing contained in this Section 6.6 shall cause its Representatives and Subsidiaries prohibit the Board of Directors of the Company from furnishing information to, cease any and all existing or entering into discussions, negotiations or discussions with an agreement with, any person or group of persons (other than SPAC entity that makes an unsolicited Acquisition Proposal after the date hereof if, and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) only to the contrary, extent that the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none Board of Directors of the Company, its Subsidiariesafter consultation with and based upon the written opinion of outside counsel, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way concludes in good faith that such action is necessary for the Board of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis Directors of the statusCompany, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults comply with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees its fiduciary duties to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsits shareholders under applicable law.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. Neither Seller nor Access Plans will (a) During the Interim Period, the Company shall not, and shall Seller and Access Plans will not cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (AHS or any of its SubsidiariesSubsidiaries to) (i) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to take the acquisition of any action that is otherwise prohibited capital stock or restricted by other voting securities, or any substantial portion of the terms assets, of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company AHS or any of its Representatives Subsidiaries (including any acquisition structured as a merger, consolidation, or Subsidiaries receive share exchange) or (ii) participate in any offer discussions or communication in negotiations regarding, furnish any information with respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing. Seller and all existing Access Plans shall notify Buyer promptly if it receives any Acquisition Proposal or request for any confidential information or data or if any negotiations or discussions concerning an Acquisition Proposal are sought to be initiated or continued with Seller or Access Plans; however, nothing in this Agreement will prohibit the Access Plans board of directors (or Access Plans’ officers, directors, employees or agents) from furnishing information to or entering into discussions or negotiations with any person that makes an unsolicited Acquisition Proposal, if the Access Plans board determines in good faith that that action is required for it to comply with its duties to stockholders imposed by law and the proposal is a Superior Acquisition Proposal (as defined below), but the Access Plans board may not approve or group recommend an Acquisition Proposal, or withdraw or modify its approval or recommendation of persons (other than SPAC and its Representatives) regarding an Alternative Transaction this Agreement, unless that proposal is a Superior Acquisition Proposal. During As used herein, “Superior Acquisition Proposal” means a bona fide Acquisition Proposal made by a third party that the Interim PeriodAccess Plans board (or a duly constituted committee thereof) determines in good faith, after consultation with its financial advisor, to be more favorable to Access Plans’ stockholders than the Company will not confidentially submit to transactions contemplated by this Agreement and that the Access Plans board (or file with the SEC any Registration Statement on Form S-1 or F-1such committee) determines is reasonably capable of being consummated. Notwithstanding anything set forth in If Seller and Access Plans terminate this Section 8.03(a) Agreement due to the contraryreceipt of a Superior Acquisition Proposal, Access Plans shall pay to Buyer on the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead date this Agreement is terminated cash in an amount equal to the Permitted Equity Financing greater of $250,000.00 or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four five percent (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms25%) of the Permitted Equity Financing or potential Permitted Equity Financing, difference between the aggregate consideration to be received under the Superior Acquisition Proposal and this Agreement (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock“Break-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction ProposalFee”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During the Interim Pre-Closing Period, the Company shall not, shall cause each Subsidiary of the Company not to and shall cause not authorize or permit any of its Representatives and Subsidiaries not representatives to, directly or indirectly, (i) solicit, initiate, solicit seek, entertain, knowingly encourage, knowingly facilitate, support or encourage (including by way induce the making, submission or announcement of providing confidential any inquiry, expression of interest, proposal or non-public information) any inquiriesoffer that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerto, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage enter into, participate in, maintain or participate in continue any discussionscommunications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, negotiations or transactions deliver or make available to any Person any non-public information with respect to, or take any third party regarding other action regarding, any Alternative Transaction Proposal inquiry, expression of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to any such Alternative Transaction to, an Acquisition Proposal, or (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any agreement letter of intent or deliver any agreement other Contract contemplating or instrument otherwise relating to any Acquisition Proposal, (v) submit any Acquisition Proposal to the vote of any Company Stockholder or (vi) engage in the further preparation for (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal by engaging any underwriter or other agreement third party) or instrument) related otherwise take any steps in furtherance of any initial public offering. The Company will immediately cease and cause to be terminated any Alternative Transaction Proposal; provided that (x) and all existing activities, discussions or negotiations with any Persons conducted prior to or on the execution, delivery and performance date of this Agreement and the other Transaction Agreements and the consummation with respect to any Acquisition Proposal. If any authorized representative of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take takes any action that the Company is otherwise prohibited or restricted by obligated pursuant to this Section 5.2 to cause such representative of the terms Company not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 5.2.
(including Section 6.01). b) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and the Company and its Affiliates shall, and shall cause each of its representatives to, immediately terminate access to any online “data room” and promptly notify SPAC if request each Person (other than Parent and its Affiliates and its and their respective representatives) that has executed a confidentiality agreement relating to the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, Affiliates and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities representatives in connection with such Person’s consideration of an Acquisition Proposal, to return (or if permitted by the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein)applicable confidentiality agreement, which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consentdestroy) all of the Equity Securities owned information required to be returned (or, if applicable, destroyed) by such Person in favor and support under the terms of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a applicable confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement until the Closing or the termination of this Agreement in accordance with its terms, each of the Seller and the Company shall will not, and shall cause nor will either authorize or permit any of its Representatives and Subsidiaries not officers, directors, Affiliates, Employees, agents or any investment banker, attorney or other advisor or representative (or any of their respective Affiliates) to, directly or indirectly, :
(ia) take any action to initiate, solicit solicit, facilitate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal;
(including by way b) participate in any discussions or negotiations regarding, furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of providing confidential or non-public information) any inquiriesproposal that constitutes, proposals or offers that constitute or may reasonably be expected to lead to, any Acquisition Proposal;
(c) engage in discussions or negotiations with any Person with respect to any purchase of shares Acquisition Proposal;
(d) amend or other Equity Securities grant any waiver or release under any standstill or similar agreement with respect to equity securities of the Company (a "Standstill Agreement"); or
(e) approve, endorse or material portion of the assets of the recommend any Acquisition Proposal; The Company will immediately cease any and its Subsidiaries all existing activities, discussions or negotiations with any parties (on a consolidated basisother than Purchaser) or conducted heretofore with respect to any merger, business combination or other similar transaction of the Acquisition Proposal. The Company or its Subsidiaries shall notify Purchaser immediately (an “Alternative Transaction Proposal”), (ii) engage or participate but in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iiievent within 48 hours) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit after receipt by the Company (or any of its Subsidiariesadvisors) of any Acquisition Proposal, or of any request for information relating to take the Company for access to the properties, books or records of the Company by any action that is otherwise prohibited or restricted by Person for the terms purpose of this Agreement (including Section 6.01)making an Acquisition Proposal. The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication shall provide such notice orally and in respect of an Alternative Transaction Proposal, writing and will promptly communicate to SPAC in reasonable detail shall identify the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease conditions of any and all existing negotiations such Acquisition Proposal or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposalrequest for information. During the Interim Period, the The Company will not confidentially submit to or file with the SEC any Registration Statement keep Purchaser informed on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if a prompt basis (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and but in any event within twenty-four (24) 48 hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms material developments (including any developments, amendments or proposed amendments to such termsamendments) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalAcquisition Proposal request.
Appears in 1 contract
Exclusivity. (a) During the Interim Periodperiod from the date of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause its Representatives officers, directors, employees, agents, representatives and Subsidiaries Affiliates (including for this purpose commonly Controlled Affiliates) not to, directly or indirectly, (ia) solicit, initiate, solicit seek, encourage or encourage support any inquiry, proposal or offer from, furnish any information to, or participate in any discussions or negotiations with, any corporation, partnership, person or other entity or group (including other than Parent and its Subsidiaries and Representatives) regarding any Acquisition Proposal, (b) enter into, continue with or participate in any discussions or negotiations with, or provide any information to, any Person (other than Parent and its Subsidiaries and Representatives) concerning a possible Acquisition Proposal or (c) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. During the period from the date of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, upon receipt by way the Company or any of providing confidential its commonly Controlled Affiliates of any offer, proposal, indication of interest, request or non-public information) any inquiries, proposals or offers inquiry that constitute or may could reasonably be expected to lead to any purchase of shares or other Equity Securities of an Acquisition Proposal, the Company or material portion shall within one (1) Business Day (i) notify Parent of the assets its receipt of the Company such Acquisition Proposal and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC Parent in reasonable detail the terms and substance of any such Acquisition Proposal (including providing Parent with a written statement with respect to any non-written Acquisition Proposal received, which statement must include the terms thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal). During the Interim PeriodIn addition, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), within one (1) none Business Day advise Parent of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments material modification or proposed amendments modification to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC Acquisition Proposal and any other Person (other than information necessary to keep Parent informed in all material respects regarding the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any status and details of such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (PLBY Group, Inc.)
Exclusivity. (a) During From the Interim Perioddate of this Agreement until the Closing Date or the earlier termination of this Agreement, the Company and each Seller shall not, and nor shall cause its Representatives and Subsidiaries not to, the Company or any Seller directly or indirectly, through any officer, director, employee, representative or agent thereof, (ia) initiate, solicit or encourage (including by way the initiation or submission of providing confidential or non-public information) any inquiries, proposals or offers that constitute regarding any acquisition, merger, take-over bid, sale of all or may reasonably be expected to lead to any purchase substantially all of shares the assets of, or sales of capital stock or other Equity Securities securities of the Company or material portion of its Subsidiaries, whether or not in writing and whether or not delivered to the assets shareholders of the Company and its Subsidiaries generally (on including by way of a consolidated basis) tender offer), or any merger, business combination or other similar transaction of transactions involving the Company or its Subsidiaries (any of the foregoing inquiries or proposals being referred to herein as an “Alternative Transaction Acquisition Proposal”)) or (b) negotiate with respect to or effect any transaction contemplated by an Acquisition Proposal. The Company shall promptly notify the Buyer after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any Seller in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or that informs the board of directors of the Company that the Person making the request is considering making or has made an Acquisition Proposal. Such notice to the Buyer shall be made promptly orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. Subject to their fiduciary duties, so long as this Agreement remains in effect and has not been terminated, the board of directors of the Company shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Buyer the approval or recommendation by such board of this Agreement, the agreements contemplated herein or the transactions contemplated hereby, (ii) engage approve or participate recommend, or propose to approve or recommend, any Acquisition Proposal (other than as contemplated in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, this Agreement) or (iii) enter approve or authorize the entering into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related with respect to any Alternative Transaction Proposal; provided that Acquisition Proposal (x) other than as contemplated in this Agreement). From the execution, delivery and performance date of this Agreement and until the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation Closing Date or earlier termination of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed Agreement, no Seller will sell or otherwise transfer, or grant any option to permit the Company (or purchase, any of its Subsidiaries) such Seller’s Shares to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any a third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsparty.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Exclusivity. (a) During From the Interim Perioddate of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company Parent and Merger Sub shall not, and shall use their reasonable best efforts to cause its their Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit or knowingly encourage (including by way means of providing confidential furnishing or disclosing information), knowingly facilitate, discuss (with a third party) or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Parent Acquisition Proposal; (ii) furnish or disclose any non-public information) information to any inquiriesPerson in connection with, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on to, a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Parent Acquisition Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or ; (iii) enter into any agreement Contract regarding a Parent Acquisition Proposal; (iv) prepare or deliver take any agreement steps in connection with an offering of any securities of either Parent of the Merger Sub (or instrument any Affiliate or successor of either Parent of the Merger Sub), other than the Private Placements and the issuance of shares of Parent Common Stock as Merger Consideration; or (v) knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. Parent shall (A) notify the Company promptly upon receipt of any Parent Acquisition Proposal by Parent or Merger Sub, and to describe the terms and conditions of any such Parent Acquisition Proposal in reasonable detail (including a confidentiality agreement, letter the identity of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Person making such Parent Acquisition Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (yB) nothing in this Section 8.03(a) shall be construed to permit keep the Company (or reasonably informed on a reasonably current basis of any of its Subsidiaries) modifications to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any such offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company information. Parent shall, and shall cause its Representatives and Subsidiaries Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the Execution Date with respect to, or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit which is reasonably likely to give rise to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryresult in, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Parent Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) During From the Interim Perioddate of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company shall not, and shall use its reasonable best efforts to cause its Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit or knowingly encourage (including by way means of providing confidential furnishing or disclosing information), knowingly facilitate, discuss (with a third party) or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public informationinformation to any Person (other than to the Parties and their respective Representatives) any inquiriesin connection with, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the to, a Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or ; (iii) enter into any agreement or deliver any agreement or instrument (including Contract regarding a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Company Acquisition Proposal; provided that (xiv) the execution, delivery and performance prepare or take any steps in connection with a public offering of this Agreement and the other Transaction Agreements and the consummation any equity securities of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any Affiliate or successor of its Subsidiariesthe Company); or (v) otherwise knowingly facilitate or knowingly encourage any effort or attempt by any Person to take do or seek to do any action that is otherwise prohibited or restricted by of the foregoing.
(b) The Company shall (i) notify Parent promptly upon receipt of any Company Acquisition Proposal, describing the terms and conditions of this Agreement (including Section 6.01). The any such Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC Acquisition Proposal in reasonable detail (including the terms identity of the Persons making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation prohibiting the disclosure of such identity) and substance thereof, and the (ii) keep Parent reasonably informed on a reasonably current basis of any material modifications to such offer or information. The Company shall, and shall cause its Representatives and Subsidiaries Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the Execution Date with respect to, or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit which is reasonably likely to give rise to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryresult in, the a Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) During Seller agrees that unless this Agreement has been terminated as herein provided, neither the Interim Seller, nor its Affiliates, representatives, employees or agents (collectively, "Agents") will, commencing on the date of this Agreement and continuing through January 31, 1996 (the "Exclusive Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to"), directly or indirectly, (i) initiatesolicit, solicit encourage or encourage negotiate any proposal (including by way whether solicited or unsolicited) for, or execute any agreement relating to, a sale of providing confidential all or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities part of the Company or material portion Shares, and Seller and the Agents shall use their best reasonable efforts (subject to the fiduciary obligations of any Agents serving as director of the assets Company) to prevent, and shall vote all Shares against, a sale of the Company and its Subsidiaries (on Company's assets or a consolidated basis) sale of any equity or debt security of the Company's or any merger, business combination consolidation, recapitalization or other similar transaction involving the Company with any party other than Purchaser (any of the Company or its Subsidiaries (foregoing is referred to as an “Alternative Transaction "Acquisition Proposal”"), (ii) engage subject to the fiduciary obligations of any Agents serving as directors of the Company, provide any information regarding the Company or participate in any discussions, negotiations or transactions with the Shares to any third party regarding for the purpose of soliciting, encouraging or negotiating an Acquisition Proposal (it being understood that nothing contained in clauses (i) or (ii) above shall restrict Seller or any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, of its Agents from providing information as required by legal process); or (iii) enter into vote their Shares for any agreement or deliver any agreement or instrument (including a confidentiality agreementoperation of the business of the Company other than in the ordinary course of business, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance consistent with past practices. For purposes of this Agreement and Section 7.4 only, the other Transaction Agreements and the consummation of the Transactions Company shall not be deemed a violation to be an Affiliate of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsSeller.
(b) During In the Interim Period, SPAC shall not, and shall cause its Representatives and event that Seller does not consummate the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (Acquisition as a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation result of the Transactions Seller's breach of Section 7.4(a) hereof, Seller shall be liable to Purchaser for the payment of liquidated damages to Purchaser in the agreed upon amount of One Hundred Thousand Dollars ($100,000); provided, however, that if Purchaser does not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify consummate the Company if SPAC or any of its Representatives or Acquisition because Seller has sold the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate Shares to the Company in reasonable detail due to the terms and substance thereofrequest of Commonwealth Associates, and SPAC shall, and shall cause its Representatives and or financial accommodations or other arrangements have been made by Commonwealth Associates which have the Sponsor to, cease any and all existing negotiations or discussions with any person or group effect of persons (other than causing the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalto purchase such Shares or preventing Purchaser from purchasing the Shares from Seller on terms acceptable to Purchaser as contemplated hereby, then Seller shall be liable to Purchaser for the payment of liquidated damages to Purchaser in the agreed upon amount of Two Hundred Fifty Thousand Dollars ($250,000).
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the The Company shall not, and the Company shall use reasonable best efforts to cause each of its Representatives officers, directors, employees, representatives and Subsidiaries agents not to, directly or indirectly, (i) encourage, solicit, initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons entity (other than SPAC and its Representativesthe Parent) regarding an Alternative Transaction Proposal. During the Interim Periodconcerning any merger, the consolidation, sale of material assets, tender offer, recapitalization, material accumulation of Company will not confidentially submit to Shares, proxy solicitation or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of other business combination involving the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way any division of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (xan "Acquisition Transaction") notifies SPAC promptly or (and in ii) or take any event within twenty-four other action intended or designed to facilitate the efforts of any person or entity (24other than Parent) hours) after the Company has determined relating to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalspossible Acquisition Transaction.
(b) During Notwithstanding anything herein to the Interim Periodcontrary, SPAC in the event that there is an unsolicited proposal for or an unsolicited indication of a serious interest in entering into, an Acquisition Transaction from a bona fide financially capable third party that contains no financing contingency, the Company, at its discretion, shall notbe permitted to furnish to and communicate with any such party all publicly available information requested by such party. In the event that such party requests information in addition to that which is publicly available, the Company may furnish to and shall cause its Representatives communicate with such third party non-public information and the Sponsor not tootherwise negotiate with such party, directly or indirectly, only if (i) initiatetwo (2) business days prior written notice shall have been given to the Parent and (ii)(A) the Company's Board of Directors shall have been advised in writing by its investment banker that it believes such third party is financially capable, solicit or encourage without any financing contingency, of consummating an Acquisition Transaction, (including B) the Company's Board of Directors shall have been advised, by way the written opinion of providing confidential or outside counsel to the Company, that any failure to provide such non-public information) any inquiries, proposals or offers that information to such party would constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation breach of the Transactions shall not be deemed a violation fiduciary responsibilities of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any Board of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate Directors to the Company in reasonable detail Stockholders and (C) the terms and substance thereofCompany's Board of Directors, and SPAC shallafter weighing such advice, and determines that failing to furnish such information would constitute a breach of the Board's fiduciary duties. Notwithstanding anything herein to the contrary, nothing shall cause its Representatives and prohibit the Sponsor to, cease any and all existing negotiations or discussions with any person or group Board of persons (other than Directors of the Company and from responding to a tender offer or complying with its Representatives) regarding a SPAC Alternative Transaction Proposalobligations under Sections 14d-9 or 14e-2 of the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (Kurzweil Applied Intelligence Inc /De/)
Exclusivity. From the Signing Date and ending on the earlier of (a) During the Interim PeriodClosing and (b) the termination of this Agreement, the Company parties hereto shall not, and shall cause their respective subsidiaries and its and their respective Representatives and Subsidiaries not to, directly or indirectly, (i) initiateenter into, solicit solicit, initiate or continue any discussions or negotiations with, or knowingly encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead respond to any purchase of shares inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other Equity Securities entity or “group” (within the meaning of Section 13(d) of the Company or Exchange Act), concerning any sale of any material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) such party or any of its outstanding capital stock or any conversion, merger, business combination consolidation, liquidation, recapitalization, dissolution or other similar transaction involving such party or any of such party’s subsidiaries other than with the Company or its Subsidiaries other parties to this Agreement and their respective Representatives (an “Alternative Transaction ProposalTransaction”), (ii) engage enter into any agreement regarding, continue or otherwise participate in any discussionsdiscussions regarding, negotiations or transactions furnish to any person any information with respect to, or cooperate in any third party regarding any Alternative Transaction Proposal or way that may would otherwise reasonably be expected to lead to to, any such Alternative Transaction Proposal, or (iii) enter into commence, continue or renew any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to due diligence investigation regarding any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01)Transaction. The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company Each party shall, and shall cause its subsidiaries and its and their respective Affiliates and Representatives and Subsidiaries to, immediately cease any and all existing discussions or negotiations or discussions with any person or group of persons conducted heretofore with respect to any Alternative Transaction. Each party will promptly request each person (other than SPAC the parties hereto and its their respective Representatives) regarding that has prior to the Signing Date been provided with Confidential Information in connection with its consideration of an Alternative Transaction Proposalto return or destroy all such Confidential Information furnished to such person by or on behalf of it. During the Interim Period, the Company will not confidentially submit If a party or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to or file with the SEC an Alternative Transaction at any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) time prior to the contraryClosing, the Company then such party shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any no event within later than twenty-four (24) hourshours after such party becomes aware of such inquiry or proposal) after notify such person in writing that such party is subject to an exclusivity agreement with respect to the Company has determined to pursue Transaction that prohibits such party from considering such inquiry or proposal. Without limiting the Permitted Equity Financing or potential Permitted Equity Financingforegoing, (y) keeps SPAC reasonably informed on a prompt and timely basis the parties hereto agree that any violation of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC restrictions set forth in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC 7.05 by a party or any of its subsidiaries or its or their respective Affiliates or Representatives or the Sponsor receive any offer or communication in respect shall be deemed to be a breach of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalthis Section 7.05 by such party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Virgin Group Acquisition Corp. II)
Exclusivity. (a) During Parent and Seller each agrees that after the Interim Perioddate hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company it shall not, and shall cause not authorize, permit or instruct any of its Representatives Affiliates to, and Subsidiaries shall direct its and its Affiliates’ officers, directors, employees, investment bankers, attorneys, accountants, agents, advisors and representatives not to, directly or indirectly, (i) solicit, initiate, solicit or purposefully facilitate or purposefully encourage the submission, making or announcement of any Acquisition Proposal, (including by way of providing confidential ii) initiate, engage, participate in or purposefully encourage any discussions or negotiations regarding, or furnish to any Person any non-public information) information with respect to, or take any inquiriesother action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to to, any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Acquisition Proposal, or (iii) enter into or become bound by any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal intent or other agreement or instrument) related with respect to any Alternative Transaction Acquisition Proposal; provided that (x) . Without limiting the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation generality of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposalforegoing, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company Parent shall, and shall cause its Representatives and Subsidiaries Affiliates to, and shall direct its and its Affiliates’ Representatives to, promptly cease and cause to be terminated any and all existing discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Person conducted prior to the date hereof with respect to any Acquisition Proposal. During Promptly following the Interim Perioddate hereof, the Company will not confidentially submit Parent shall, or shall cause a Representative of Parent to, instruct any such Person to return or file destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Acquisition Proposal in accordance with the SEC confidentiality agreements entered into between Parent or any Registration Statement on Form S-1 or F-1of its Affiliates and any such Person. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company Parent shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and but in any event within twenty-four two (242) hoursBusiness Days of receipt thereof) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis notify Buyer of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal inquiry, proposal, offer or other agreement or instrument) related request for information relating to any SPAC Alternative Transaction Proposal; provided an Acquisition Proposal that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC is received by Parent or any of its Representatives or Affiliates on and after the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, date hereof and will promptly communicate prior to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalClosing.
Appears in 1 contract
Exclusivity. (a) During the Interim PeriodWhile this Agreement remains in effect, the Company Seller shall not, and the Seller shall cause require each of its Representatives officers, directors, employees, representatives and Subsidiaries agents not to, directly or indirectly, (i) initiate, solicit solicit, encourage or encourage otherwise facilitate any inquiry, proposal, offer or discussion with any party (including by way of providing confidential or non-public informationother than the Buyer) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or concerning any merger, reorganization, consolidation, recapitalization, business combination combination, liquidation, dissolution, share exchange, sale of stock, sale of material assets or other similar business transaction of involving the Company or its Subsidiaries (an “Alternative Transaction Proposal”)Seller, (ii) engage furnish any non-public information concerning the business, properties or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead assets of the Seller to any such Alternative Transaction Proposal, party (other than the Buyer) or (iii) enter into engage in discussions or negotiations with any agreement party (other than the Buyer) concerning any such transaction.
(b) The Seller shall immediately notify any party with which discussions or deliver negotiations of the nature described in paragraph (a) above were pending that the Seller is terminating such discussions or negotiations. If the Seller receives any agreement or instrument (including a confidentiality agreementinquiry, letter of intent, term sheet, indication of interest, indicative proposal or offer of the nature described in paragraph (a) above, the Seller shall, within one business day after such receipt, notify the Buyer of such inquiry, proposal or offer, including the identity of the other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement party and the other Transaction Agreements and terms of such inquiry, proposal or offer.
(c) Notwithstanding the consummation foregoing, prior to obtaining the Requisite Stockholder Approval, the Seller may, to the extent required by the fiduciary obligations of its Board of Directors, as determined in good faith by the Transactions shall Board of Directors after consultation with outside counsel, in response to a Superior Proposal that did not be deemed result from a violation breach by the Seller of this Section 8.03(a4.7, and subject to compliance with Section 4.3(b), (i) furnish information with respect to the Seller to the person making such Superior Proposal and (yii) nothing participate in this Section 8.03(a) shall be construed to permit the Company (discussions or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any such person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction such Superior Proposal. During Without limiting the Interim Periodforegoing, it is agreed that any violation of the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything restrictions set forth in this Section 8.03(a) 4.7 by any representative of the Seller, whether or not such person is purporting to act on behalf of the contrarySeller or otherwise, the Company shall be permitted deemed to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on be a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation breach of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.4.7
Appears in 1 contract
Sources: Asset Purchase Agreement (Boston Communications Group Inc)
Exclusivity. (a) During the Interim Period, the The Company shall hereby agrees that it will not, and shall cause nor will it permit any of its Representatives and Subsidiaries not to, directly nor will it authorize or indirectlypermit any officer, (i) initiatedirector or employee of, or any investment banker, attorney or other advisor or representative of it or any of its Subsidiaries to, solicit or initiate, or encourage (including by way of providing confidential the submission of, any proposal or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities transaction for a financing of the Company (other than draws under the Foothill Facility or material portion project financing in the ordinary course of business consistent with past practice) or for the acquisition by a Person other than the Investor or an Affiliate of the Investor of stock or a substantial part of the assets of the Company and its Subsidiaries (on through a consolidated basis) or any merger, business combination merger or other similar transaction business combination, stock or assets acquisition or otherwise (in any such case, an "ALTERNATIVE TRANSACTION") (or to furnish to any Person any nonpublic information concerning the business, properties or assets of the Company (other than in connection with the sale by the Company of properties designated for sale in an Approved Business Plan, as required by the Foothill Loan Documents or its Subsidiaries in connection with project financing (an “Alternative Transaction Proposal”debt or equity) in the ordinary course of business consistent with past practice), (iior to otherwise facilitate any inquiries or the making of any pro- posal) engage prior to the Closing. In addition, the Company hereby agrees that it will, and will cause its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other advisors or participate in representatives to, terminate any discussions, other discussions or negotiations or transactions with any third party regarding any Alternative Transaction Proposal Transaction, and that the Company will not, nor will it permit any of its Subsidiaries to, nor will it authorize or that may reasonably be expected to lead to permit any such Alternative Transaction Proposalofficer, director or employee of, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementinvestment banker, letter of intent, term sheet, indication of interest, indicative proposal attorney or other agreement advisor or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation representative of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (Company, or any of its SubsidiariesSubsidiaries to have any additional discussions or negotiations with any third party regarding such an Alternative Transaction prior to the Closing.
(b) Notwithstanding the provisions of Section 6.6(a), prior to take any action that is otherwise prohibited or restricted the Closing, to the extent required by the fiduciary obligations of the Board, as determined in good faith by the Board after receipt of the written advice of its outside counsel and financial advisor, the Company may (i) in response to an unsolicited request therefor, furnish information with respect to the Company to the requestor pursuant to a customary confidentiality agreement and discuss such information and the terms of this Agreement Section 6.6 (including but not the terms of any possible Alternative Proposal) with such Person and (ii) upon receipt by the Company of an unsolicited Alternative Proposal, following delivery to the Investor of the notice required pursuant to the last two sentences of this Section 6.016.6(b), participate in negotiations regarding such Alternative Proposal. The Company agrees to promptly notify SPAC if Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or executive officer of the Company or any of its Representatives Subsidiaries or Subsidiaries receive any offer investment banker, financial advisor, attorney or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit advisor to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form representative of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives Sub- sidiaries, whether or the Sponsor receive any offer or communication in respect not such person is purporting to act on behalf of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereofor any of its Subsidiaries or otherwise, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group be deemed to be a breach of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.Section 6.6
Appears in 1 contract
Sources: Investment Agreement (Atlantic Gulf Communities Corp)
Exclusivity. (a) During the Interim Periodperiod from the date of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause its Representatives officers, directors, employees, agents, representatives and Subsidiaries Affiliates (including for this purpose commonly Controlled Affiliates and Subsidiaries) not to, directly or indirectly, (ia) solicit, initiate, solicit seek, encourage or encourage support any inquiry, proposal or offer from, furnish any information to, or participate in any discussions or negotiations with, any corporation, partnership, person or other entity or group (including other than Parent and its Subsidiaries and Representatives) regarding any Acquisition Proposal, (b) enter into, continue with or participate in any discussions or negotiations with, or provide any information to, any Person (other than Parent and its Subsidiaries and Representatives) concerning a possible Acquisition Proposal or (c) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. During the period from the date of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, upon receipt by way the Company or any of providing confidential its commonly Controlled Affiliates of any offer, proposal, indication of interest, request or non-public information) any inquiries, proposals or offers inquiry that constitute or may could reasonably be expected to lead to any purchase of shares or other Equity Securities of an Acquisition Proposal, the Company or material portion shall within one (1) Business Day (i) notify Parent of the assets its receipt of the Company such Acquisition Proposal and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC Parent in reasonable detail the terms and substance of any such Acquisition Proposal (including providing Parent with a written statement with respect to any non-written Acquisition Proposal received, which statement must include the terms thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal). During the Interim PeriodIn addition, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), within one (1) none Business Day advise Parent of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments material modification or proposed amendments modification to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC Acquisition Proposal and any other Person (other than information necessary to keep Parent informed in all material respects regarding the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any status and details of such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Mountain Crest Acquisition Corp. III)
Exclusivity. (a) During the Interim Pre-Closing Period, the Company shall not, not (and the Company shall cause its Representatives Affiliates, officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors, and Subsidiaries other agents not to), directly or indirectly: (a) solicit, (i) initiate, solicit initiate or knowingly encourage (including by way of providing confidential furnishing any information relating to the Company), or non-public information) knowingly induce or knowingly take any inquiries, proposals or offers that constitute or may other action which could reasonably be expected to lead to the making, submission or announcement of, any purchase of shares proposal or inquiry that constitutes, or could reasonably be likely to lead to, an Acquisition Proposal; (b) other Equity Securities than informing Persons of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerprovisions contained in this Section 5.5, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)enter into, (ii) engage continue or participate in any discussions, discussions or any negotiations or transactions with any third party regarding any Alternative Transaction Acquisition Proposal or that may reasonably be expected otherwise take any action to lead knowingly facilitate or knowingly induce any effort or attempt to any such Alternative Transaction make or implement an Acquisition Proposal; (c) approve, endorse, recommend or (iii) enter into any agreement Acquisition Proposal or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheetmemorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the Company to abandon or terminate its obligations under this Agreement; or (d) agree, indication of interest, indicative proposal resolve or other agreement or instrument) related commit to do any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01)foregoing. The Company agrees to promptly notify SPAC Parent immediately if any Person makes any proposal, offer, inquiry or contact with respect to an Acquisition Proposal and provide Parent with a description of the material terms and conditions thereof, including the identity of such Person. The Company shall immediately cease and cause to be terminated any existing discussions with any Person (other than Parent) concerning any proposal relating to an Acquisition Proposal. With respect to the Persons with whom discussions or negotiations have been terminated, the Company shall use its reasonable best efforts to obtain the return or destruction of, in accordance with the terms of any applicable confidentiality agreement, any confidential information previously furnished to any such Person by the Company or any of its Representatives officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors or Subsidiaries receive other agents. The Company shall not release any offer Person from, or communication in respect of an Alternative Transaction Proposalwaive any provision of, and will promptly communicate any confidentiality or standstill agreement to SPAC in reasonable detail the terms and substance thereof, and which the Company shallis a party, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group without the prior written consent of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsParent.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the Company shall not, Each party hereby acknowledges and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers agrees that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions it shall not be deemed a violation the exclusive provider of the Services contemplated hereunder to the other, "Associations" (as defined below) or Credit Unions. Each party shall be free to market, provide and sell, and to contract and otherwise arrange to market, provide, and sell its services to third parties; and, accordingly Cavion may contract with or otherwise engage another business providing e-commerce marketplaces to the Credit Unions concurrently with the term of this Section 8.03(a) agreement, and (y) BATNET shall be free to market BAM or other e-commerce services to others, including, without limitations, other Credit Unions. Notwithstanding the foregoing, nothing in this Section 8.03(a) paragraph shall be construed as to permit the Company (or any of its Subsidiaries) allow either party hereto to take any action that is otherwise prohibited or restricted by the terms contract directly with either party's business "Associations." For purposes of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if paragraph Associations shall mean, in the Company or any case of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction ProposalBATNET, Associations as set forth on Exhibit E, and will promptly communicate to SPAC in reasonable detail the terms case of Cavion and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything Credit Unions as set forth in on Exhibit F and Exhibit G. Furthermore, BATNET and Cavion hereby acknowledge that both parties hereto have a business understanding that neither party shall actively seek or engage third parties providing the same or similar services as either party to this Section 8.03(a) to agreement, during the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (initial term and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalssubsequent renewal term under this agreement.
(b) During the Interim Initial Term, any Renewal Period, SPAC Cavion shall notnotify BATNET of any offer, proposal or solicitation to Cavion by any entity wishing to provide Services to Cavion similar to that provided by BATNET under this Agreement ("a BATNET Competing Entity"), and shall cause notify BATNET of such offer, proposal or solicitation to allow BATNET to match the same. BATNET shall have an absolute right to match any such offer, proposal or solicitation (the "Match Contract Terms") and Cavion shall execute an agreement with BATNET to provide services pursuant to the Match Contract Terms. If BATNET executes and performs its Representatives and obligations under the Sponsor agreement for the Match Contract Terms, Cavion may not to, directly or indirectly, enter into an agreement with the BATNET Competing Entity.
(ic) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC During the Initial Term and any other Person (other than the Company) Renewal Period, BATNET shall notify Cavion of any offer, proposal or solicitation to BATNET by any entity wishing to obtain services from BATNET similar to that provided to Cavion under this Agreement (a “SPAC Alternative Transaction Proposal”"Cavion Competing Entity"), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause notify Cavion of such offer, proposal or solicitation to allow Cavion to match the same. Cavion shall have an absolute right to match any such offer, proposal or solicitation (the "Match Contract Terms") and BATNET shall execute an agreement with BATNET to provide services pursuant to the Match Contract Terms. If Cavion executes and performs its Representatives obligations under the agreement for the Match Contract Terms, BATNET may not enter into an agreement with the Cavion Competing Entity.
(d) BATNET acknowledges that CAVION has relationships with certain third-party merchants ("Cavion Merchants") that provide services or products related to financial services or Internet access or generate consumer loans, including but not limited to credit unions, credit union leagues, credit union associations, corporate credit unions, internet service providers, auto brokers and buying, services, credit bureaus, mortgage brokers, other mortgage issuers, insurance companies, stock brokerage and investment companies. Any such compensation arrangement with Cavion Merchants is not considered part of this Agreement. Examples of such relationships are described more fully and attached hereto as Exhibit G.
(e) Cavion, by entering into this Agreement with BATNET, will use reasonable commercial efforts to endorse and recommend the Sponsor toBAM services to the credit unions. Nevertheless, cease and notwithstanding the foregoing, both Parties to this Agreement expressly acknowledge, understand and accept that each credit union connected to Cavion's Network must agree to permit BATNET to serve its members through Cavion's Network. Any decision by any credit union not to permit BATNET to provide any services to its members shall be deemed to be outside the control of either BATNET or Cavion and all existing negotiations shall not operate to the detriment of either BATNET or discussions with Cavion under any person term or group provision of persons (other than the Company this Agreement, each of which shall remain in full force and its Representatives) regarding a SPAC Alternative Transaction Proposaleffect and shall be enforceable by either Party hereto.
Appears in 1 contract
Exclusivity. (a) During Prior to the Interim PeriodClosing, the Company or until this Agreement is terminated in accordance with its terms, Seller shall not, and Seller shall use all reasonable efforts to cause its Representatives and Subsidiaries Seller’s respective officers, employees, directors, agents or representatives not to, directly or indirectly, (i) initiatesolicit, solicit encourage, facilitate or encourage (including by way of providing confidential initiate discussions or non-public information) engage in negotiations with, or provide information to, or authorize any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares financial advisor or other Equity Securities Person to solicit, encourage, facilitate or initiate discussions or engage in negotiations with, or provide information to, any Person (other than Purchaser or a Purchaser Representative) concerning any potential sale of the Company capital stock of, or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination consolidation, combination, sale of assets, branch sale, purchase and assumption, reorganization or other similar transaction of involving Seller; provided, that the Company foregoing shall not prevent such activities to the extent related solely to Excluded Assets or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of Excluded Liabilities. Until this Agreement and the other Transaction Agreements and the consummation of the Transactions is terminated in accordance with its terms, Seller shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24two Business Days after receipt thereof by Seller or any Affiliate) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt advise Purchaser orally and timely basis in writing of any proposal of the status, discussions, negotiations and terms kind described in this Section 5.3 (including any developments, amendments or the proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinterms thereof), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions request for information with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead respect to any such SPAC Alternative Transaction Proposalproposal, or (iii) enter into any agreement inquiry with respect to or deliver any agreement which could result in a proposal of the kind described in this Section 5.3; provided, that Seller shall have no such obligations with respect to proposals, requests or instrument (including a confidentiality agreementinquiries solely with respect to Excluded Assets or Excluded Liabilities. Notwithstanding anything contained herein to the contrary, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided Purchaser and Seller agree that the execution, delivery sole right and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of remedy for noncompliance with this Section 8.03(b). SPAC agrees 5.3 is to promptly notify the Company if SPAC or have such provision specifically enforced by any of its Representatives or the Sponsor receive court having equity jurisdiction; it being acknowledged and agreed that any offer or communication in respect of a SPAC Alternative Transaction Proposal, such breach will cause irreparable injury to Purchaser and that money damages will promptly communicate not provide an adequate remedy to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalPurchaser.
Appears in 1 contract
Sources: Branch Purchase Agreement (Mercantile Bancorp, Inc.)
Exclusivity. From and after the date of this Agreement until the earlier of the Effective Time and termination of this Agreement in accordance with Article 9 hereof (a) During the Interim “Exclusivity Period”), the Company shall will not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or through any of its Subsidiaries) to take any action that is otherwise prohibited , director, officer, employee, Affiliate or restricted by the terms agent of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives Subsidiaries, or otherwise, take any action to solicit, initiate, seek, entertain, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any third party regarding any acquisition of the Company or any of its Subsidiaries, any merger or consolidation with or involving the Company or any of its Subsidiaries, or any acquisition of any material portion of the stock or assets or the Company or any of its Subsidiaries. The Company agrees that, in no event, will the Company accept or enter into an agreement concerning any such third party acquisition transaction during the Exclusivity Period. The Company will notify Parent immediately after receipt by any director or officer of the Company, or by any Affiliate, employee or agent to which the Company has Knowledge, at any time during the Exclusivity Period of any unsolicited proposal for, or inquiry respecting, any third party acquisition transaction involving the Company or any of its Subsidiaries receive or any offer request for nonpublic information in connection with such a proposal or communication in respect inquiry, or for access to the properties, books or records of an Alternative Transaction Proposalthe Company or any of its Subsidiaries by any person, and or entity that informs the Company or any of its Subsidiaries that it is considering making, or has made, such a proposal or inquiry. Such notice to Parent will promptly communicate to SPAC in reasonable detail indicate the identity of the person making the proposal or inquiry but need not specify the terms and substance thereofconditions of such proposal or inquiry. Without limiting the foregoing, and it is understood that any violation of the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything restrictions set forth in this Section 8.03(a) to the contrary6.1 by any Subsidiary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if)director, (1) none of the Companyofficer, its Subsidiariesemployee, Affiliate or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form agent of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or Subsidiaries shall be deemed to be a breach of this Section 6.1 by the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalCompany.
Appears in 1 contract
Exclusivity. (a) During the Interim Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries and its and their respective Affiliates and Representatives and Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit encourage, induce or encourage facilitate the making, submission or announcement of any proposal relating to an Acquisition Transaction (including by way of providing confidential an “Acquisition Proposal”) or non-public information) take any inquiries, proposals or offers action that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage furnish any information regarding the Company or participate any of its Subsidiaries to any Person in any discussions, negotiations connection with or transactions with any third party regarding any Alternative Transaction in response to an Acquisition Proposal or an inquiry or indication of interest that may would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in any such Alternative discussions or negotiations with any Person with respect to a potential Acquisition Transaction or an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (iiiv) enter into any agreement letter of intent or deliver similar document or any agreement Contract contemplating or instrument otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any of its Subsidiaries or any of its or their respective Affiliates or Representatives, whether or not such Affiliate or Representative is purporting to act on its behalf, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(b) The Company shall promptly (and in no event later than forty-eight (48) hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal (including a confidentiality agreementthe identity of the Person making or submitting such Acquisition Proposal, letter of intent, term sheet, inquiry or indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(amaterial terms thereof) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited made or restricted submitted by any Person during the terms of this Agreement (including Section 6.01)Pre-Closing Period. The Company agrees shall keep Parent reasonably informed with respect to promptly notify SPAC if the Company or status of any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction such Acquisition Proposal, inquiry or indication of interest and will promptly communicate to SPAC in reasonable detail any modification or proposed modification thereto. Promptly following the terms execution and substance thereofdelivery of this Agreement, and the Company shall, and shall cause its Subsidiaries and its and their respective Affiliates and Representatives and Subsidiaries to, immediately cease and cause to be terminated any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the CompanyParent and its Affiliates and Representatives) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in that relate to any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Acquisition Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction potential Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Exclusivity. 3.1 Following the closing the Purchase Agreement, so long as Atai retains ownership or control of (i) no less than fifty percent (50%) of the Purchased Shares during the one year period following the first closing under the Purchase Agreement and (ii) no less than seventy-five percent (75%) of the Purchased Shares thereafter during the Term of this Agreement, the Company agrees and acknowledges it will not, without Atai's prior written consent: (x) license or sell any Company IP, or perform any services for, any Third Party within the Field anywhere in the world; and/or (y) on its own, or with or on behalf of, any Third Party, engage in the research, development, manufacture or commercialization of any products or services within the Field anywhere in the world (collectively, the "Restrictive Covenants"); provided that the foregoing shall not (a) During prevent the Interim PeriodCompany from fulfilling any non-commercial obligations to any Third Party pursuant to any feasibility study or similar non-commercial agreement already existing as of the LOI Date, but is intended to prohibit the Company from entering into any agreements with any Third Party within the Field after the LOI Date, or (b) restrict or prevent the Company from executing new commercial agreements and conducting research, development, manufacture or commercialization, or engaging in any other activities with regard to the products identified in Schedule 1 hereto, or outside the Field.
3.2 Each Party will promptly notify the other Party upon becoming aware of any infringement or threatened infringement of the Company IP by a Third Party in the Field. The Parties shall co-operate fully in the enforcement of any Company IP. The Company shall have the first right to enforce the Company IP in all infringement, interference, misappropriation and other claims and proceedings, which it may undertake in its discretion. If the Company does not take steps to enforce the infringement or threatened infringement of the Company IP in the Field within sixty (60) days after the date that written notice thereof was received from or delivered to the Company, then Atai may take such legally permissible action as it deems necessary or appropriate to undertake such enforcement, which it may undertake in its discretion. The Party enforcing such Company IP (the "Controlling Party") shall keep the other Party (the "Cooperating Party") fully informed of the actions and positions taken or proposed to be taken and the actions and positions taken by all other parties to such proceedings. If Atai requests the Company to join as a party to any action hereunder, the Company shall notjoin as a party to that action at Atai's expense, and if the Company requests Atai to join as a party to any action hereunder, Atai shall cause its Representatives and Subsidiaries not to, directly or indirectly, join as a party to that action at the Company's expense. Any award paid by any third parties as a result of any actions taken pursuant to this Section 3.2 (i) initiate, solicit or encourage (including whether by way of providing confidential settlement or non-public informationotherwise) shall first be applied to the reimbursement of any inquirieslegal fees and expenses incurred by either Party, proposals and then the remainder shall be divided between the Parties as follows: (a) Atai shall receive an amount equal to its lost profits or offers that constitute a reasonable royalty on the infringing sales (or whichever measure of damages the court may reasonably be expected to lead to any purchase of shares or other Equity Securities of have applied), then (b) the Company shall receive an amount equal to the Manufacturing Fee and any other amounts that Company would have received from Atai pursuant to a Manufacturing Agreement had Atai sold the infringing products or material portion of services rather than infringer, and then (c) the assets of balance, if any, remaining shall be shared such that seventy-five percent (75%) goes to the Controlling Party and twenty-five percent (25%) goes to the Cooperating Party. The Company will have the sole right to enforce the Company IP in all infringement, interference, misappropriation and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction claims and proceedings not related to the Field; and payment of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead all costs related to any such Alternative Transaction Proposalactions, including legal fees, will be the responsibility of the Company, and the Company shall be entitled to all damages and other amounts that are awarded and monies that are paid by way of settlement of or otherwise arising out of any such claim or proceeding. Each Party will cooperate with the other Party in making available all necessary documents and witnesses for any legal proceedings within the Field, without charging any fees to the other Party.
3.3 Notwithstanding the Restrictive Covenants described in Section 3.1, to the extent that the Company receives a bona fide commercial opportunity within the Field from one or more Third Parties during the Term as evidenced by a signed term sheet (each, a "Business Opportunity"), then the Company shall provide Atai with written notice to present such Business Opportunity to Atai (a "Business Opportunity Notice"). In each Business Opportunity Notice, the Company shall provide all information necessary or desirable in order for Atai to be able to fully evaluate the Business Opportunity, and Atai shall have 90 days after delivery of such a Business Opportunity Notice to determine whether to consent to the Company pursuing such Business Opportunity. Atai shall be entitled, by delivery of written notice to the Company prior to the end of such 90 day period, to withhold its consent to the Company pursuing a Business Opportunity if Atai determines in good faith that such Business Opportunity is competitive to products or services then being developed or commercialized, or (iii) enter into planned to be developed in the future, by Atai or any agreement or deliver any agreement or instrument (of its Associated Companies. If Atai does not object to such Business Opportunity within such 90 day period, including a confidentiality agreementthe reasons for such good faith objection, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) then the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be Company may pursue such Business Opportunity without it being deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsRestrictive Covenants.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Strategic Development Agreement (IntelGenx Technologies Corp.)
Exclusivity. (a) During the Interim Period, the The Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, through any officer, director, employee, Representative, financial advisor or agent, or any of its subsidiaries, (i) initiatesolicit, solicit initiate or knowingly encourage (including by way of providing confidential furnishing information or non-public informationentering into any form of agreement, arrangement or understanding) the initiation of any inquiries, Acquisition Proposal or inquiries or proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)in connection therewith, (ii) engage or participate in any discussions, discussions or negotiations or transactions with any third party regarding any Alternative Transaction Proposal Acquisition Proposal, (iii) withdraw or that may reasonably be expected modify the approval of the Board of the transactions contemplated hereby in a manner adverse to lead to the Offeror, (iv) approve or recommend any such Alternative Transaction Acquisition Proposal, or (iiiv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Acquisition Proposal; provided that PROVIDED, HOWEVER, that, subject to compliance with section 9, but notwithstanding the preceding part of this section 8(a) or any other provision of this Agreement, nothing shall prevent the Board from considering, negotiating, approving, recommending to its shareholders or entering into an agreement in respect of an unsolicited bona fide written Acquisition Proposal (x) that the executionBoard determines in good faith, delivery after receiving (i) a written opinion from its financial advisors (a copy of which shall be provided to the Offeror) that the Acquisition Proposal would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to Shareholders from a financial point of view than the transaction contemplated by this Agreement, and performance (ii) a written opinion of outside counsel (a copy of which shall be provided to the Offeror) to the effect that it is appropriate that the Board take such action in order to discharge properly its fiduciary duties, would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to its Shareholders than the transaction contemplated by this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) Agreement, and (y) nothing that is received prior to the Expiry Time (any such Acquisition Proposal being referred to herein as a "Superior Proposal").
(b) The Company shall forthwith notify the Offeror, at first orally and then in this Section 8.03(a) shall be construed to permit the Company (writing, of all current and future Acquisition Proposals of which its directors or senior officers are or become aware, or any of its Subsidiaries) amendments to take the foregoing, or any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees request for non-public information relating to promptly notify SPAC if the Company or any of its Representatives subsidiaries in connection with an Acquisition Proposal or Subsidiaries receive for access to the properties, books or records of the Company or any offer of its subsidiaries by any Person. Such notice shall include a description of the material terms and conditions of any proposal and provide such details of the proposal, inquiry or communication contact as the Offeror may reasonably request including the identity of the Person making such proposal, inquiry or contact.
(c) If the Company receives a request for material non-public information from a Person who proposes a bona fide Acquisition Proposal in respect of an Alternative Transaction the Company (the existence and content of which have been disclosed to the Offeror), and the Board determines that such proposal would be likely to be a Superior Proposal pursuant to section 8(a) having received the advice referred to therein, then, and only in such case, the Board may, subject to the execution by such Person of a non-disclosure agreement, provide such Person with access to information regarding the Company and its subsidiaries; PROVIDED, HOWEVER, that the Person making the Acquisition Proposal shall not be precluded under such non-disclosure agreement from making the Acquisition Proposal, and will promptly communicate provided further that the Company sends a copy of any such non-disclosure agreement to SPAC in reasonable detail the terms and substance thereof, Offeror immediately upon its execution and the Offeror is provided with a list or copies of the information provided to such Person and immediately provided with access to similar information to which such Person was provided.
(d) The Company shallshall ensure that its officers, directors and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC employees and its Representatives) regarding an Alternative Transaction Proposal. During subsidiaries and their officers, directors and employees and any financial advisors or other advisors or Representatives retained by it are aware of the Interim Periodprovisions of this section 8 and, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryfor greater certainty, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none responsible for any breach of the Company, this section 8 by its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal financial advisors or other agreement advisors or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Letter Agreement (Consoltex Inc/ Ca)
Exclusivity. (a) During the Interim Period, the The Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, through any officer, director, employee, Representative, financial advisor or agent, or any of its subsidiaries, (i) initiatesolicit, solicit initiate or knowingly encourage (including by way of providing confidential furnishing information or non-public informationentering into any form of agreement, arrangement or understanding) the initiation of any inquiries, Acquisition Proposal or inquiries or proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)in connection therewith, (ii) engage or participate in any discussions, discussions or negotiations or transactions with any third party regarding any Alternative Transaction Proposal Acquisition Proposal, (iii) withdraw or that may reasonably be expected modify the approval of the Board of the transactions contemplated hereby in a manner adverse to lead to the Purchaser, (iv) approve or recommend any such Alternative Transaction Acquisition Proposal, or (iiiv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Acquisition Proposal; provided that provided, however, that, subject to compliance with section 9, but notwithstanding the preceding part of this section 8(a) or any other provision of this Agreement, nothing shall prevent the Board from considering, negotiating, approving, recommending to its shareholders or entering into an agreement in respect of an unsolicited bona fide written Acquisition Proposal (x) that the executionBoard determines in good faith, delivery after receiving (i) a written opinion from its financial advisors (a copy of which shall be provided to the Purchaser) that the Acquisition Proposal would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to Shareholders from a financial point of view than the transaction contemplated by this Agreement, and performance (ii) a written opinion of outside counsel (a copy of which shall be provided to the Purchaser) to the effect that it is appropriate that the Board take such action in order to discharge properly its fiduciary duties, would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to its Shareholders than the transaction contemplated by this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) Agreement, and (y) nothing that is received prior to the Expiry Time (any such Acquisition Proposal being referred to herein as a "Superior Proposal").
(b) The Company shall forthwith notify the Purchaser, at first orally and then in this Section 8.03(a) shall be construed to permit the Company (writing, of all current and future Acquisition Proposals of which its directors or senior officers are or become aware, or any of its Subsidiaries) amendments to take the foregoing, or any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees request for non-public information relating to promptly notify SPAC if the Company or any of its Representatives subsidiaries in connection with an Acquisition Proposal or Subsidiaries receive for access to the properties, books or records of the Company or any offer of its subsidiaries by any Person. Such notice shall include a description of the material terms and conditions of any proposal and provide such details of the proposal, inquiry or communication contact as the Purchaser may reasonably request including the identity of the Person making such proposal, inquiry or contact.
(c) If the Company receives a request for material non-public information from a Person who proposes a bona fide Acquisition Proposal in respect of an Alternative Transaction the Company (the existence and content of which have been disclosed to the Purchaser), and the Board determines that such proposal would be likely to be a Superior Proposal pursuant to section 8(a) having received the advice referred to therein, then, and only in such case, the Board may, subject to the execution by such Person of a non-disclosure agreement, provide such Person with access to information regarding the Company and its subsidiaries; provided, however, that the Person making the Acquisition Proposal shall not be precluded under such non-disclosure agreement from making the Acquisition Proposal, and will promptly communicate provided further that the Company sends a copy of any such non-disclosure agreement to SPAC in reasonable detail the terms and substance thereof, Purchaser immediately upon its execution and the Purchaser is provided with a list or copies of the information provided to such Person and immediately provided with access to similar information to which such Person was provided.
(d) The Company shallshall ensure that its officers, directors and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC employees and its Representatives) regarding an Alternative Transaction Proposal. During subsidiaries and their officers, directors and employees and any financial advisors or other advisors or Representatives retained by it are aware of the Interim Periodprovisions of this section 8 and, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryfor greater certainty, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none responsible for any breach of the Company, this section 8 by its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal financial advisors or other agreement advisors or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Acquisition Agreement (Applied Digital Solutions Inc)
Exclusivity. SPAC and the Company intend to conduct their respective due diligence on an exclusive basis for sixty (a60) During days thereafter (“Exclusive Period”). Neither SPAC nor the Interim PeriodCompany shall, and SPAC and the Company shall not, and shall cause its Representatives and Subsidiaries not permit any of their respective representatives to, directly or indirectly, (ia) solicit, initiate, solicit facilitate or encourage (including by way of providing confidential any inquiries that constitute, or non-public information) any inquiries, proposals or offers that constitute or may would reasonably be expected to lead to to, a Proposed Transaction Proposal (as defined below) from any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)third-party, (iib) engage in, continue or otherwise participate in any discussions, discussions or negotiations or transactions with any third third-party regarding an Proposed Transaction proposal, or furnish to any Alternative third-party any non-public information or afford to any third-party access to the businesses, properties, assets or personnel or any of its subsidiaries, in each case for the purpose of encouraging or facilitating a Proposed Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iiic) enter into any agreement or deliver with any agreement or instrument (including third-party with respect to a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Proposed Transaction Proposal; provided that (x) that, as long as the executionparties hereof are still discussing the Proposed Transaction in good faith, delivery and performance the Exclusive Period shall be automatically extended for one additional 45-day period upon the expiration of this Agreement and the initial 45-day period, unless either party has given prior written notice to the other that it does not wish to extend the Exclusive Period. “Proposed Transaction Agreements and Proposal” shall, (a) with respect to the consummation Company, mean (i) any acquisition or purchase by any third-party, directly or indirectly, of the Transactions shall not be deemed a violation any shares of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (any class of outstanding voting or any equity securities of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiariessubsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage any tender offer (including by way of providing confidential a self-tender) or non-public information) any inquiriesexchange offer that, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate if consummated, would result in any discussions, negotiations third-party beneficially owning any shares of any class of outstanding voting or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form equity securities of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all any of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”)subsidiaries, (ii) engage any merger, acquisition, amalgamation, consolidation, business combination, joint venture or participate in other similar transaction involving the Company or any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, of its subsidiaries or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementliquidation, letter of intentdissolution, term sheetrecapitalization, indication of interest, indicative proposal extraordinary dividend or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation significant corporate reorganization of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposalsubsidiaries, and will promptly communicate (b) with respect to the Company SPAC, means any “Business Combination”, as defined in reasonable detail the terms SPAC’s amended and substance thereofrestated articles of association, and SPAC shalldated February 14, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal2025.
Appears in 1 contract
Exclusivity. (a) During the Interim Periodperiod from the date of this Agreement until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 11.1, each Major Company Stockholder and the Company shall not, and shall cause their respective Subsidiaries not to and shall use their respective reasonable best efforts to cause its and their Representatives and Subsidiaries not to, directly or indirectly, take any action to:
(ia) initiate, solicit solicit, knowingly invite, knowingly encourage, or encourage knowingly facilitate (including by way of providing confidential or furnishing non-public informationinformation relating to the Company Group, other than as permitted by and is furnished in compliance with this Section 7.18) the submission of a Company Acquisition Proposal or the making of any inquiriesinquiries or requests for information with respect to, proposals or offers the making of, any inquiry regarding any proposal or offer that constitute constitutes, or may would reasonably be expected to result in or lead to, any Company Acquisition Proposal or authorize or recommend, any Company Acquisition Proposal;
(b) engage in, continue to or otherwise participate in any purchase of shares way in negotiations or other Equity Securities discussions (or agree to engage in, continue to or otherwise participate in any negotiations or discussions) or furnish or provide access to the business, operations, properties, books and records, personnel or any confidential information or data of the Company Group, to any Person (or material portion such Person’s Representatives) in connection with, or for the purpose of, facilitating or encouraging the making of the assets of the any Company and its Subsidiaries (on Acquisition Proposal or in response to a consolidated basis) Company Acquisition Proposal or any mergerproposal, business combination offer or other similar transaction of the Company inquiry that constitutes or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may would reasonably be expected to result in or lead to any such Alternative Transaction a Company Acquisition Proposal;
(c) (i) approve, endorse or recommend, or propose publicly to approve, endorse or recommend for approval or authorize the entry of, any Company Acquisition Proposal or (iiiii) approve, endorse or recommend or submit a Company Acquisition Proposal for approval of the stockholders of the Company;
(d) accept a Company Acquisition Proposal or execute or enter into into, any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheetmemorandum of understanding, indication of interestagreement in principle, indicative proposal confidentiality agreement (other than an Acceptable Confidentiality Agreement executed in accordance with Section 8.1(b)(i)), merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement (i) providing for or instrument) related relating to any Alternative Transaction ProposalCompany Acquisition Proposal or (ii) requiring the Company to abandon, terminate or fail to consummate the Transactions; provided or
(e) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing; provided, however, in each case, that nothing in this Section 7.18 shall operate to limit Ardent Leisure’s right to take any action expressly permitted by and taken in compliance with the terms and conditions set forth in Section 8.1. Following the execution of this Agreement, each Major Company Stockholder and each member of the Company Group shall, and shall cause their respective Subsidiaries to and shall use their respective reasonable best efforts to cause its and their Representatives to (x) immediately cease and cause to be terminated any and all existing solicitations, discussions or negotiations with any Person (or their Representatives) that existed prior to or on the execution, delivery and performance date of this Agreement with respect to any Company Acquisition Proposal (other than with Parent and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(aits Representatives) and (y) nothing in this Section 8.03(a) shall be construed immediately terminate all electronic data room access previously granted to permit any Persons. Each Major Company Stockholder and the Company (or any of its Subsidiariesacting together) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) 24 hours) after the notify, in writing, Parent of their receipt of any Company has determined to pursue the Permitted Equity Financing Acquisition Proposal and, any proposal or potential Permitted Equity Financingoffer that constitutes, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may would reasonably be expected to result in or lead to to, any business combination transaction between SPAC Company Acquisition Proposal, which notice shall include a summary of the material terms and any other conditions of, and the identity of the Person (other than the Company) (a “SPAC Alternative Transaction Proposal”)or group of Persons making, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction such Company Acquisition Proposal or that may reasonably be expected to lead proposal, offer, or request for information and, with respect to any such SPAC Alternative Transaction Proposalproposal or offer, a copy of any written proposal or offer. Each Major Company Stockholder and the Company (iiiacting together) enter into shall promptly (and in any agreement or deliver any agreement or instrument event within 24 hours) keep Parent informed (including by providing a copy of any written amendments or revisions) of any material developments with respect to any such proposal or offer or Company Acquisition Proposal (including any changes or proposed changes thereto). The Company and each Major Company Stockholder agrees that it shall take the necessary steps to promptly inform its respective Representatives involved in the Transactions of the obligations undertaken in this Section 7.18, and the Company agrees it shall promptly request each Person who has heretofore executed a confidentiality agreement, letter agreement in connection with such Person’s consideration of intent, term sheet, indication acquiring such party or any material portion thereof to return or destroy all confidential information heretofore furnished to such Person by or on its behalf in accordance with the terms of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that Contract entered into between the execution, delivery Company and performance of this Agreement and the other Transaction Agreements and the consummation such Person. Any violation of the Transactions shall not be deemed a violation foregoing restrictions by any of this Section 8.03(b). SPAC agrees to promptly notify the Company’s Subsidiaries or by any Representatives of the Company if SPAC acting on the Company’s behalf or any of its Representatives or Subsidiaries, shall be deemed to be a breach of this Agreement by the Sponsor receive any offer or communication Company. Notwithstanding anything in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate this Section 7.18 to the Company in reasonable detail the terms and substance thereofcontrary, and SPAC shall, and shall cause its Representatives and the Sponsor prior to, cease but not after the receipt of, the Australian Approval, in the event that Ardent Leisure is permitted to take any action set forth in Section 8.1(b) in response to an unsolicited bona fide written Acquisition Proposal that has not been withdrawn and all existing negotiations did not result, directly or discussions with indirectly from a breach of this Section 7.18 or Section 8.1(a), the provisions of this Section 7.18 shall not restrict either Major Company Stockholder, any person or group member of persons (other than the Company Group or any of their Representatives from participating in and its Representativesproviding reasonable assistance to Ardent Leisure in connection therewith; provided, any such action, participation or reasonable assistance is in compliance with the provisions of Section 8.1; provided, further, in connection with such participation or assistance, in no event shall any Major Company Stockholder, any member of the Company Group or any of their Representatives knowingly facilitate a breach of Section 8.1 by Ardent Leisure, or take any action (whether or not on Ardent Leisure’s behalf or at Ardent Leisure’s direction) regarding a SPAC Alternative Transaction Proposalthat would not be expressly permitted to be taken by Ardent Leisure in accordance with Section 8.1.
Appears in 1 contract
Sources: Merger Agreement (Dave & Buster's Entertainment, Inc.)
Exclusivity. (a) During the Interim Pre-Closing Period, other than with respect to the Contemplated Transactions, or pursuant to or in connection with a Whole Company Sale, Seller and its Subsidiaries (including the Company shall not, and shall cause its Entities) will not authorize or permit any of Seller’s Representatives and Subsidiaries not to, directly or indirectly, (i) knowingly solicit, initiate, solicit knowingly encourage, facilitate, support or encourage (including by way intentionally induce the making, submission or announcement of providing confidential any inquiry, expression of interest, proposal or non-public information) any inquiriesoffer that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerto, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)Transaction, (ii) engage enter into, participate in, maintain or participate in continue any discussionscommunications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, negotiations or transactions deliver or make available to any Person any non-public information with respect to, any third party regarding any Alternative Transaction Proposal inquiry, expression of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to any such to, an Alternative Transaction ProposalTransaction, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal intent or any other agreement Contract contemplating or instrument) related otherwise relating to any Alternative Transaction Proposal; Transaction. Promptly following the Execution Date, Seller shall request the return or destruction of all Company Confidential Information provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing to third parties in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of connection with an Alternative Transaction ProposalTransaction.
(b) In addition to Seller’s obligations pursuant to Section 6.14(a), to the extent not prohibited by applicable Law or Contract, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit pursuant to or file in connection with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrarya Whole Company Sale, the Company Seller shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four five (245) hoursBusiness Days after receipt thereof by Seller) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis advise Buyer in writing of the statusreceipt by Seller of any proposal for an Alternative Transaction or any inquiry with respect thereto, discussionsand the material terms and conditions of, negotiations and terms (including any developments, amendments or proposed amendments to such terms) the identity of the Permitted Equity Financing Person making, such request or potential Permitted Equity Financinginquiry, and except to the extent any disclosure is limited by terms of confidentiality agreements in effect prior to the Execution Date (z) consults with SPAC in respect which case, for the avoidance of doubt, Seller shall remain obligated to provide as much of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities information set forth in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned this sentence as is permitted by such Person in favor and support of the Transactions, including the Company Transaction Proposalsconfidentiality agreements).
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Clearwater Paper Corp)
Exclusivity. (a) During Prior to the Interim PeriodClosing Date, the Company or until this Agreement is terminated in accordance with its terms, Seller shall not, and Seller shall cause its Representatives Bank not to, and Subsidiaries Seller shall use all reasonable efforts to cause Seller’s and Bank’s respective officers, employees, directors, agents or representatives not to, directly or indirectly, (i) initiatesolicit, solicit encourage, facilitate or encourage (including by way of providing confidential initiate discussions or non-public information) engage in negotiations with, or provide information to, or authorize any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares financial advisor or other Equity Securities Person to solicit, encourage, facilitate or initiate discussions or engage in negotiations with, or provide information to, any Person (other than Purchaser or a Purchaser Representative) concerning any potential sale of the Company capital stock of, or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination consolidation, combination, sale of assets, reorganization or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)involving, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction ProposalBank; provided that (x) the execution, delivery and performance of foregoing shall not prevent such activities to the extent related solely to Excluded Assets or Excluded Liabilities. Until this Agreement and the other Transaction Agreements and the consummation of the Transactions is terminated in accordance with its terms, Seller shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four two (242) hoursBusiness Days after receipt thereof by Seller or any Affiliate) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt advise Purchaser orally and timely basis in writing of any proposal of the status, discussions, negotiations and terms kind described in this Section 5.4 (including any developments, amendments or the proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinterms thereof), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions request for information with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead respect to any such SPAC Alternative Transaction Proposalproposal, or (iii) enter into any agreement inquiry with respect to or deliver any agreement or instrument (including which could result in a confidentiality agreement, letter proposal of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposalthe kind described in this Section 5.4; provided that Seller shall have no such obligations with respect to proposals, requests or inquiries solely with respect to Excluded Assets or Excluded Liabilities. Notwithstanding anything contained herein to the executioncontrary, delivery Purchaser and performance of this Agreement Seller agree that the sole right and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of remedy for noncompliance with this Section 8.03(b). SPAC agrees 5.4 is to promptly notify the Company if SPAC or have such provision specifically enforced by any of its Representatives or the Sponsor receive court having equity jurisdiction; it being acknowledged and agreed that any offer or communication in respect of a SPAC Alternative Transaction Proposal, such breach will cause irreparable injury to Purchaser and that money damages will promptly communicate not provide an adequate remedy to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalPurchaser.
Appears in 1 contract
Exclusivity. Until this Agreement has been terminated in accordance with its terms, each Party agrees that it will not, and shall cause any of their respective affiliates, representatives, officers, directors, agents or stockholders not to, (a) During enter into any arrangement, agreement, understanding or negotiations with respect to a possible Target Acquisition, with any other Person, including Target (other than with respect to the Interim PeriodTarget Acquisition), nor (b) enter into any agreement, arrangement, understanding or negotiations with any other Person, including Target (other than with respect to the Target Acquisition), with respect to (i) the acquisition of only the Nonwoven Business or only the Apparel Fabric Business, or any portion of the assets, operations, business or any securities of Target or any similar transaction, however structured, or (ii) the investment in any other Person (other than through DTA or an affiliate of PGI or TIG formed for the purpose of the Target Acquisition) formed for any such purpose; provided, that in the event this Agreement is terminated pursuant to clause (c) of Section 14 below, the Company provisions of the first sentence of this Section 1 shall survive for two months following the date of such termination. Following the consummation of the Target Acquisition, PGI agrees that until the termination of this Agreement it will not, and shall cause its Representatives representatives, officers, directors, agents, stockholders or controlled affiliates, including Target, not to provide any non-public information to any Person in connection with any offer or proposal to acquire all or any portion of the assets, operations, business, or securities related to the Apparel Fabric Business. PGI will not and Subsidiaries following consummation of the Target Acquisition will cause Target not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal arrangement or other agreement understanding requiring it to abandon or instrument) related to any Alternative terminate the Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC any agreement, arrangement or understanding with any governmental or regulatory body or agency). Each of PGI and its Representatives) regarding an Alternative Transaction Proposal. During GL represents to the Interim Period, the Company will not confidentially submit other Party that neither is party to or file bound by any agreement with respect to the SEC any Registration Statement on Form S-1 or F-1Target Acquisition other than this Agreement. Notwithstanding anything set forth The term "Person" in this Section 8.03(a) Agreement will be interpreted broadly to the contraryinclude, the Company shall be permitted to undertake the Permitted Equity Financing if without limitation, any corporation, company (and only ifincluding limited liability company), (1) none of the Companypartnership, its Subsidiaries, joint venture or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsindividual.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During From and after the Interim Perioddate hereof until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 10.01, SPAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and its affiliates and Representatives. SPAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
(b) Except as expressly permitted by the terms of this Agreement, from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause it and its Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit or knowingly encourage (including by way means of providing confidential furnishing or disclosing non-public information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any inquiriesnon-public information to any person in connection with, proposals or offers that constitute could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any contract or may other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any equity securities of the Company or any of the Continuing Subsidiaries; or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any person to do or seek to do any of the foregoing. The Company agrees to (A) notify SPAC promptly upon receipt of any Company Acquisition Proposal by the Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the persons making such Company Acquisition Proposal) and (B) keep SPAC reasonably informed on a current basis of any modifications to such offer or information. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any persons (other than SPAC) conducted prior to or as of the date hereof by the Company, and will cause its Representatives to cease and cause to be terminated any and all existing activities, discussions or negotiations, that would reasonably be expected to lead to a Company Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such person and its Representatives to any purchase of shares online or other Equity Securities data rooms containing any non-public information in respect of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or the Continuing Subsidiaries receive any offer or communication in respect for the purpose of an Alternative Transaction Proposal, and will promptly communicate permitting such persons to SPAC in reasonable detail the terms and substance thereof, and the evaluate a potential Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Aurora Technology Acquisition Corp.)
Exclusivity. (a) During 8.1 In consideration of the Interim Period, actions to be taken and expenses to be incurred by Adherex and the Company in furtherance of this agreement without the prior written consent of the other party (which written consent shall notnot be unreasonably withheld or delayed), each of Adherex and the Company agrees that until the Effective Time or termination of this Agreement by either party, each shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage negotiate any offer to buy, or offer to agree to sell, or sell, any of its assets or its shares (including except as permitted in Article VI and other than shares issued in financing transaction approved by way the Adherex Board or pursuant to the exercise of providing confidential or non-public information) any inquiriesoptions, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares warrants or other Equity Securities rights to purchase securities outstanding as of the Company date hereof or material portion of pursuant to incentive stock options granted after the assets of the Company and its Subsidiaries (on a consolidated basisdate hereof pursuant to Adherex’s incentive stock option plan) or any merger, interest therein and shall not merge or enter into a business combination with or solicit or negotiate any offer to merge or enter into a business combination with or into any corporation or entity other similar than the other party (each such transaction of the Company or its Subsidiaries (an being referred to as a “Alternative Transaction ProposalProposed Acquisition Transaction”); provided, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit clause will in any way limit Adherex or the Company (or from responding to any proposal of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any other person or group of persons dealing with (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company said “dealing with” shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public informationexclude solicitation) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC other person in respect of the Permitted Equity Financing foregoing that is not solicited by Adherex or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC in the good faith opinion of the Adherex or the Company Board and in the written opinion of such parties’ outside counsel, a failure to do so would represent a breach of fiduciary obligations of the directors of Adherex or the Company. Each of Adherex and Company will immediately notify the other if any discussions or negotiations are sought to be initiated, any inquiry or proposal is made, or any information is requested with respect to any Proposed Acquisition Transaction and notify the other of its Representatives the terms of any proposal which it may receive in respect of such Proposed Acquisition Transaction, including, without limitation, the identity of the prospective purchaser or acquiring party. Each of Adherex and Company shall provide the Sponsor receive other a copy of any written offer or communication received in respect of a SPAC Alternative Transaction Proposal, Proposed Acquisition Transaction.
8.2 Nothing contained in this Article VIII shall prohibit Adherex from taking and will promptly communicate disclosing to Shareholders a position contemplated by Rule 14d-9 or 14e-2 promulgated under the Exchange Act or from making any disclosure to the Company Shareholders if, in reasonable detail the terms and substance thereofgood faith judgment of the Adherex Board, and SPAC shallafter consultation with outside counsel, and failure to so disclose would be inconsistent with its obligations under applicable law; provided, however, that, subject to the preceding paragraph, neither Adherex nor the Adherex Board nor any committee thereof shall cause withdraw, or propose publicly to withdraw, its Representatives and position with respect to this Agreement or the Sponsor toMerger or approve or recommend, cease any and all existing negotiations or discussions with any person propose publicly to approve or group of persons (recommend, a competing proposal, without providing written notice to the other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalparties as soon as reasonably practicable.
Appears in 1 contract
Exclusivity. (a) During Following the Interim Perioddate hereof, each of the Company Selling Shareholders agrees that it shall not, and nor shall cause it permit any of its Representatives and Subsidiaries not affiliates to, nor shall it authorize any equityholder, officer, director, employee, accountant, counsel, investment banker, financial advisor or other representative of such Selling Shareholder or any of their respective affiliates to, directly or indirectly, (i) initiatesolicit, solicit initiate or encourage (including by way of providing confidential or non-public furnishing information) or take any inquiries, proposals other action to facilitate any inquiries or offers that constitute the making of any proposal which constitutes or may reasonably be expected to lead to, a Purchase Proposal (as defined below) from any person or entity, or engage in any discussions or negotiations relating thereto or accept any Purchase Proposal. The Selling Shareholder shall, and shall cause its affiliates and representatives to, immediately cease and suspend any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by it or any of its affiliates or representatives with respect to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Purchase Proposal or that may which could reasonably be expected to lead to a Purchase Proposal. For purposes of this Agreement, “Purchase Proposal” means any such Alternative Transaction Proposalinquiry, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with from any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person entity (other than the CompanyFounders and their respective affiliates or representative) (a “SPAC Alternative Transaction Proposal”)concerning any sale, (ii) engage assignment, pledge, transfer or participate other disposition of any ownership interest, voting power, or investment power in any discussionsSale Shares. In case the Company does not make full payments to the Selling Shareholders as set forth in Schedule 2 before May 20, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal2012, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and exclusivity stated under Section 5 shall expire upon the other Transaction Agreements and the consummation choice of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalSelling Shareholders.
Appears in 1 contract
Sources: Share Contribution and Purchase Agreement (HQ Global Education Inc.)
Exclusivity. (a) During the Interim Pre-Closing Period, the Company shall not, and the Company shall cause require each of its Representatives officers, directors, employees, representatives and Subsidiaries agents not to, directly or indirectly, through any officer, director, employee, Affiliate, agent or representative or otherwise, (i) initiate, solicit solicit, knowingly encourage or encourage otherwise knowingly facilitate any inquiry, proposal, offer or discussion with any party (including by way other than the Buyer or its representatives) concerning any acquisition, equity or debt financing, joint venture, merger, reorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of providing confidential stock (other than in connection with the conversion of Preferred Stock or non-public information) any inquiriesthe exercise of Options), proposals sale or offers that constitute license of material assets or may reasonably be expected to lead to any purchase of shares or other Equity Securities of similar business transaction involving the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries Subsidiary (an “Alternative Transaction Acquisition Proposal”), (ii) engage furnish any information concerning the business, properties or participate in assets of the Company or any discussions, negotiations Subsidiary or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead the Company Shares to any such Alternative Transaction Proposalparty in connection with, or to facilitate or induce the making of, an Acquisition Proposal (other than the Buyer or its representatives) or (iii) engage in negotiations or enter into any agreement with any party (other than the Buyer or deliver its representatives) concerning any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related Acquisition Proposal. Notwithstanding anything to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing contrary in this Section 8.03(a) shall be construed 5.7, if, prior to permit the date the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by obtains the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim PeriodRequisite Stockholder Approval, the Company will not confidentially submit to or file receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors, after consultation with the SEC any Registration Statement on Form S-1 Company’s financial advisor and outside counsel, has in good faith concluded is, or F-1. Notwithstanding anything set forth in this Section 8.03(a) is reasonably likely to the contrarylead to, a Superior Offer, the Company shall be permitted may (A) furnish nonpublic information to undertake the Permitted Equity Financing if third party making such Acquisition Proposal and (and only if), (1B) none of engage in negotiations with the third party with respect to the Acquisition Proposal to the extent the Company, ’s Board of Directors determines in good faith that the failure to do so would be inconsistent with its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsobligations under applicable Law.
(b) During The Company shall immediately notify any party with which discussions or negotiations of the Interim Periodnature described in Section 5.7(a) were pending that the Company is terminating such discussions or negotiations. If the Company receives any inquiry, SPAC shall notproposal or offer of the nature described in paragraph (a) above, and shall cause its Representatives the Company shall, within one (1) Business Day after such receipt, notify the Buyer of such inquiry, proposal or offer, including the identity of the other party and the Sponsor not toterms of such inquiry, directly proposal or indirectlyoffer; provided, (i) initiate, solicit or encourage (including that if such disclosure would be prohibited by way the terms of providing confidential or any non-public information) any inquiriesdisclosure agreement in effect before the date hereof, proposals the Company shall give the Buyer the choice of whether or offers that not to receive such disclosure and, if the Buyer elects to receive such disclosure, the resulting breach of such non- disclosure agreement shall not constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance breach of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalan indemnifiable claim under Article VII.
Appears in 1 contract
Sources: Merger Agreement (Medicines Co /De)
Exclusivity. Probity, on behalf of itself and each of its officers, directors and employees, and the Stockholders, covenant and agree that, until such time as this Agreement has been terminated in accordance with Section 6.1, it and each of them shall forebear directly or indirectly negotiating, soliciting or accepting any offer with any other Person to purchase, acquire, option, or merge or combine with, as applicable, Probity, any of the Probity Stock, or the Probity Business, or any interest in any of the foregoing. Without limiting the generality of the foregoing:
(a) During From and after the Interim Perioddate hereof until the Effective Time or termination of this Agreement pursuant to Section 6.1, the Company Probity shall not, and shall cause nor will it authorize or permit any of its Representatives and Subsidiaries not officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, solicit encourage or encourage induce the making, submission or announcement of any Acquisition Proposal (including by way of providing confidential as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information) information with respect to, or take any inquiries, proposals other action to facilitate any inquiries or offers the making of any proposal that constitute constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any purchase Acquisition Proposal, except as to the existence of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)these provisions, (iiiv) engage approve, endorse or participate in recommend any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Acquisition Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iiiv) enter into any letter of intent or similar document or any contract, agreement or deliver any agreement commitment contemplating or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related otherwise relating to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions Acquisition Transaction. Probity shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, immediately cease any and all existing activities, discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction parties conducted heretofore with respect to any Acquisition Proposal. During Without limiting the Interim Periodforegoing, it is understood that any violation of the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything restrictions set forth in this Section 8.03(a) to the contrarypreceding two sentences by any officer, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none director or employee of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC Probity or any of its Representatives subsidiaries or the Sponsor receive any offer investment banker, attorney or communication in respect other advisor or representative of Probity or any of its subsidiaries shall be deemed to be a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group breach of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.this Section 7.10
Appears in 1 contract
Exclusivity. (a) During the Interim PeriodFor purposes of this Agreement, the Company term "Takeover Proposal" shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) mean any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares proposal for a merger or other Equity Securities of business combination involving the Company or material any Subsidiary, or for the acquisition of a substantial equity interest in the Company or any Subsidiary, a substantial portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, Subsidiary or a product line or line of business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)any Subsidiary, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of than as contemplated by this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01)Agreement. The Company agrees shall promptly advise Purchaser orally and in writing of any "Takeover Proposal" or of any proposal, or inquiry reasonably likely to promptly notify SPAC if result in a Takeover Proposal. Each member of the Company Group shall not, directly or indirectly, whether through its officers, directors, Stockholders, agents, representatives, or otherwise, engage in any of its Representatives discussions or Subsidiaries receive negotiations with, or provide any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries non-public information to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Periodentity making, the Company will not confidentially submit proposing to make or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) believed to be contemplating a Takeover Proposal to the contraryCompany; provided, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if)however, (1) none of that the Company, its Subsidiaries, or its Representatives, prior and their directors and officers will remain free to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussionsdiscussions or negotiations regarding, negotiations furnish any information with respect to, assist or transactions with participate in, or facilitate in any other manner, any effort or attempt by any third party regarding to do or seek any of the Permitted Equity Financing or that are intended to lead foregoing to the Permitted Equity Financing, (2) extent required by the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis fiduciary obligations of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) Board of Directors of the Permitted Equity Financing or potential Permitted Equity FinancingCompany, and (z) consults with SPAC as determined in respect good faith by a majority of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person members thereof following the receipt of advice of outside legal counsel. In the event that receives Equity Securities any such activities result in connection with a Takeover Proposal which the Permitted Financing shall enter into an agreement substantially in the form Board of Directors of the Company Shareholder Lock-Up and Support reasonably concludes is superior to the transaction contemplated by this Agreement (excluding Article VI therein"Superior Proposal"), which shall also contain a customary voting provision nothing contained in which such Person agrees to vote (whether at a meeting or by written consent) all this Agreement will prevent the Board of Directors of the Equity Securities owned by Company from recommending such Person in favor and support of Superior Proposal to the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall notCompany's Stockholders, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) from withdrawing any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance recommendation of this Agreement and the other Transaction Agreements and transactions contemplated hereby. In the consummation of event that the Transactions shall Merger contemplated by this Agreement is not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect consummated because of a SPAC Alternative Transaction Superior Proposal, and will promptly communicate to the transaction contemplated by the Superior Proposal is not consummated, the Board of Directors of the Company agrees to negotiate in reasonable detail good faith with the terms and substance thereofPurchaser with a view toward consummating a transaction with the Purchaser as contemplated by this Agreement; provided, and SPAC shallhowever, and that the obligation created by this sentence shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than not apply if the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalhas paid Purchaser the termination fee provided for in Section 9.3.
Appears in 1 contract
Sources: Merger Agreement (Tsi Inc /Mn/)
Exclusivity. (a) During Until the Interim Period, the Company shall notClosing occurs or this Agreement is terminated in accordance with its terms, and except in connection with the transactions contemplated by the S▇▇▇▇▇ Merger Agreement and the Transactions contemplated hereby, Seller will not (and Seller shall cause its Subsidiaries and controlled Affiliates and their respective Representatives and Subsidiaries not to not), solicit, initiate, negotiate, agree to, directly engage in or indirectlyrenew any contact concerning any proposal or offer, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers contact that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on result in a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to offer, from any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the CompanyAcquirors and their respective Affiliates) relating to any of the following involving the Acquired Companies: (a) a liquidation, dissolution or recapitalization, (b) a merger or consolidation, (c) an acquisition or purchase of any of the material assets (or any material portion of its assets) of, or any equity interest in, the Acquired Companies, except for the sale of assets in the ordinary course of business consistent with past practice, (d) any similar transaction or business combination outside the ordinary course of business, or (e) any financing, investment, acquisition, purchase, merger, sale or any other similar transaction that would restrict, prohibit or inhibit the Seller’s ability to consummate the Transactions contemplated by this Agreement or the S▇▇▇▇▇ Merger Agreement (each, an “SPAC Alternative Transaction Acquisition Proposal”), (ii) engage or participate in any discussions, . Seller represents and warrants that all discussions and negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead relating to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons Acquisition Proposal (other than the Company transactions with the Acquirors contemplated by this Agreement) have been terminated. In the event Seller or the Target receives any unsolicited Acquisition Proposal, Seller shall promptly, and its Representativesin any event, within forty-eight (48) regarding hours, provide written notice and a SPAC Alternative Transaction Proposalcopy of such Acquisition Proposal to the Acquirors.
Appears in 1 contract
Sources: Merger Agreement (Platinum Eagle Acquisition Corp.)
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement, the Company shall not, and shall cause its Representatives each Subsidiary and Subsidiaries each of their respective directors, officers, employees, financial advisors, representatives and agents not to, directly or indirectly, (i) solicit, initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, or encourage discussion or negotiations or transactions with any third party regarding Person or entity (other than Purchaser) concerning any merger, consolidation, sale of material assets, tender offer for, recapitalization of or accumulation or acquisition of securities issued by Company or any Subsidiary, proxy solicitation, other business combination involving Company or any Subsidiary or any other plan of reorganization of Company or any Subsidiary (including, without limitation, any Employee Stock Ownership Plan structure) (collectively, “Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction ProposalTransaction”), or (iiiii) enter into provide any agreement non-public information concerning the business, properties or deliver assets of Company or any agreement Subsidiary to any Person or instrument entity (including a confidentiality agreementother than to Purchaser). Company shall, letter and shall cause each of intentits Subsidiaries to, term sheetimmediately cease any and all existing activities, indication of interest, indicative proposal or discussions and negotiations with any Person other agreement or instrument) related than Purchaser with respect to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any continue indefinitely the confirmation hearing for their pending reorganization and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding liquidation plans involving an Alternative Transaction ProposalEmployee Stock Ownership Plan. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted immediately notify Purchaser of, and shall disclose to undertake the Permitted Equity Financing if (and only if)Purchaser all details of, (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals discussions or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially described in the form first sentence of this Section 6.10. The provisions of this Section 6.10 are referred to in this Agreement as the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals“Exclusivity Provisions.”
(b) During Notwithstanding the Interim Periodprovisions of subsection (a) above, SPAC prior to entry of the Confirmation Orders, the Debtors may, to the extent required by the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee, or any orders entered or approvals or authorizations granted by the Bankruptcy Court in the Case during the period prior to Closing (collectively, the “Bankruptcy- Related Requirements”), or to the extent that the board of directors of Company determines, in good faith after consultation with outside legal counsel, that such board’s fiduciary duties under applicable Governmental Rule require it to do so, participate in discussions or negotiations with, and, subject to the requirements of subsection (c) below, furnish information to any Person, entity or group after such Person, entity or group has delivered to the Debtors, in writing, an unsolicited bona fide offer to effect an Alternative Transaction that the board of directors of Company in its good faith judgment determines, after consultation with its independent financial advisors, would result in a transaction more favorable to the stakeholders of the Debtors from a financial point of view than the transactions contemplated hereby and for which financing, to the extent required, is then committed (or which, in the good faith judgment of the board of directors, is reasonably capable of being obtained) and which (in the good faith judgment of the board of directors) is likely to be consummated (a “Superior Proposal”). In the event the Debtors receive a Superior Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the board of directors of Company from approving such Superior Proposal or requesting authorization of such Superior Proposal from the Bankruptcy Court, if such board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties under applicable Governmental Rule; and in such case, the board of directors of Company may terminate this Agreement pursuant to Section 11.1(f) hereof; provided, however, that Company shall not terminate this Agreement until at least five (5) Business Days after Purchaser’s receipt of a copy of such Superior Proposal.
(c) Debtors shall, within one (1) Business Day of the occurrence thereof, notify Purchaser orally and in writing of the receipt of a Superior Proposal. Such notice to Purchaser shall indicate in reasonable detail the identity of the potential acquirer and the material terms and conditions of such Superior Proposal, to the extent known.
(d) Notwithstanding anything to the contrary in this Section 6.10, Company shall not, and shall cause each of its Representatives and the Sponsor Subsidiaries not to, directly or indirectly, provide any non-public information to a third party unless: (i) initiate, solicit or encourage (including by way of providing confidential or Company and its Subsidiaries provide such non-public information) any inquiries, proposals information pursuant to a non-disclosure agreement entered into subsequent to the date hereof with terms regarding the protection of confidential information at least as restrictive as such terms in the Confidentiality Agreement or offers that constitute or may reasonably be expected pursuant to lead to any business combination transaction between SPAC confidentiality agreements existing on the date hereof; and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage such non-public information has been delivered previously or participate made available to Purchaser.
(e) Notwithstanding anything to the contrary in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees 6.10, Company shall be permitted to promptly notify continue the Company if SPAC or any solicitation of expressions of interest in its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalinternational operations.
Appears in 1 contract
Sources: Investment and Purchase Agreement
Exclusivity. (a) During The Company agrees that between the Interim Perioddate of this Agreement and the earlier of the Closing and the termination of this Agreement, the Company shall not, and shall cause use best efforts to ensure that none of its Affiliates and Representatives and Subsidiaries not toshall, directly or indirectlyindirectly (a) solicit, (i) initiate, solicit consider, encourage or accept any proposal or offer that constitutes an Acquisition Proposal or (b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage (including by way of providing confidential the submission of, any proposal that constitutes, or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to, an Acquisition Proposal. The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing. The Company shall notify Parent promptly, but in any event within 24 hours, orally and in writing if any such Acquisition Proposal, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to Parent shall indicate in reasonable detail the identity of the Person making such Acquisition Proposal, inquiry or other contact and the terms and conditions of such Acquisition Proposal, inquiry or other contact, unless doing so would violate a contractual obligation of confidentiality to such Person. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement, without the prior written consent of Parent. For purposes of this Agreement, “Acquisition Proposal” means any offer or proposal for, or any indication of interest in, any of the following (other than the Merger): (i) any direct or indirect acquisition or purchase of shares all or any portion of the capital stock or other Equity Securities equity or ownership interest of the Company Company, (ii) any direct or indirect acquisition or purchase of all or a material portion of the assets of the Company and its Subsidiaries Company, (on a consolidated basisiii) or any merger, consolidation or other business combination or other similar transaction of relating to the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction ProposalCompany, or (iiiiv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementrecapitalization, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (reorganization or any of its Subsidiaries) to take any action that is other extraordinary business transaction involving or otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) relating to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During Seller agrees that between the Interim PeriodEffective Date and the earlier of the Closing and the termination of this Agreement, the Company Seller shall not, and shall cause take all action reasonably necessary to ensure that none of the Company, any of its Subsidiaries or any of their respective Affiliates or Representatives and Subsidiaries not toshall, directly or indirectly:
(a) solicit, initiate, consider, knowingly encourage, enter into or approve any proposals or offers from any Person (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead relating solely to any direct acquisition or purchase of shares all or any portion of the capital stock or other Equity Securities equity or ownership interest of the Company or material portion any of its Subsidiaries or substantially all of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries, other than Inventory to be sold in the ordinary course of business consistent with past practice, (ii) to take enter into any action that is otherwise prohibited merger, consolidation or restricted by the terms of this Agreement (including Section 6.01). The Company agrees other business combination relating solely to promptly notify SPAC if the Company or any of its Representatives Subsidiaries or Subsidiaries receive (iii) to enter into a recapitalization, reorganization or any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate other extraordinary business transaction relating solely to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause or any of its Representatives and Subsidiaries to, cease (any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, such proposals or offers that are intended to lead to the Permitted Equity Financing or described in clause (yi)-(iii) engage or above, an “Acquisition Proposal”); or
(b) participate in any discussions, conversations, negotiations or transactions other communications regarding, or furnish to any other Person any information with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectlyotherwise participate in, (i) initiate, solicit knowingly facilitate or encourage (including by way of providing confidential or non-public information) knowingly take any inquiries, proposals or offers that constitute or may other action which would reasonably be expected to lead to, the making, submission or announcement of, any Acquisition Proposal. Seller immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any business combination transaction between SPAC Acquisition Proposal. Seller shall notify Purchasers promptly, but in any event within 24 hours, orally and in writing of the receipt of any other Person Acquisition Proposal. Any such notice to Purchasers shall indicate in reasonable detail the material terms and conditions of such Acquisition Proposal; provided, that such disclosure does not violate the terms of any Contracts or applicable Law. Notwithstanding anything to the contrary set forth in this Agreement, nothing herein shall prohibit, restrict or otherwise limit (other than i) the Company) (a “SPAC Alternative Transaction Proposal”)Transactions contemplated herein, (ii) engage any purchase, sale or participate in any discussionsother transactions involving the publicly traded securities of Seller, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into Seller from participating in discussions or negotiations with any agreement Person making a proposal to acquire any assets of, or deliver any agreement or instrument (including a confidentiality agreementequity in, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC Seller or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (Affiliates other than the Company and its Subsidiaries (a “Seller Proposal”), (iv) Seller or any of its Affiliates other than the Company and its Subsidiaries from providing access to its properties, books and records and furnish information (including by providing access to a data room, whether virtual or actual) to the Person making a Seller Proposal (and to such Person’s Representatives), (v) regarding Seller and Seller’s Representatives from participating in discussions or negotiations with respect to a SPAC Alternative Transaction Seller Proposal, (vi) Seller or Seller’s Representatives from disclosing the existence of this Section 4.06 to any Person who makes an unsolicited acquisition proposal for Seller, the Company or any of their respective Affiliates, Subsidiaries or Representatives, or (vii) advising any Person that a prospective purchaser has been granted exclusivity with respect to an acquisition of the Company.
Appears in 1 contract
Exclusivity. (a) During As an inducement to First Reserve to continue to pursue the Interim PeriodTransaction and the signing of a definitive merger agreement, the Company shall notagrees to work in good faith to negotiate the Transaction with First Reserve on an exclusive basis for the period commencing on the date hereof and ending at 11:59 p.m. (New York City time) on November 18, and shall cause its Representatives and Subsidiaries not to2020 (or such later date as the parties hereto may mutually agree in writing, directly or indirectlyas may be extended in accordance with this Section, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers the “Exclusivity Period”). In the event that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities at the end of the Company or material portion Exclusivity Period the parties continue to negotiate in good faith towards a Transaction, the Exclusivity Period shall be automatically extended to 11:59 p.m. (New York City time) on November 25, 2020. Upon the execution of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality this letter agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries subsidiaries to, and shall instruct (and use its reasonable best efforts to cause) its and its subsidiaries’ officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, “Representative”) to, immediately cease and cause to be terminated any and all existing discussions or negotiations or discussions with any person that may be ongoing with respect to an Acquisition Proposal and shall immediately terminate all physical and electronic dataroom access previously granted to any such person, its subsidiaries or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Exclusivity Period, the Company will not confidentially submit to or file with the SEC agrees that neither it nor any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryof its subsidiaries, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none nor any of the Companyofficers or directors of it or any of its subsidiaries, its Subsidiariesshall, or its Representativesand shall not authorize their other Representatives to, prior and shall direct and use reasonable best efforts to November 1cause them not to (i) solicit, 2021, (x) initiate, solicit knowingly encourage or encourage knowingly facilitate (including by way providing any information) any inquiries or the submission of providing confidential any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in, continue or otherwise participate in discussions or negotiations regarding, or furnish to any person any non-public information) information concerning the Company or any inquiries, proposals or offers that are intended of its subsidiaries to lead any person relating to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than Acquisition Proposal except to notify such person that the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected Company is not permitted to lead respond to any such SPAC Alternative Transaction Proposal, Acquisition Proposal during the Exclusivity Period or (iii) recommend, enter into or execute any agreement or deliver any agreement or instrument (including a confidentiality agreementcontract, letter of intent, term sheetacquisition agreement, indication agreement in principle, memorandum of interest, indicative proposal understanding or other similar agreement or instrument) related with respect to any SPAC Alternative Transaction Acquisition Proposal; provided that . For the executionavoidance of doubt, delivery and performance of this Agreement First Reserve and the Company hereby agree that they will have no obligation to continue negotiations with each other with respect to the Transaction Agreements and the consummation following expiration of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalExclusivity Period.
Appears in 1 contract
Sources: Exclusivity Agreement (FR Utility Services Merger Sub, Inc.)
Exclusivity. (a) During From the Interim Perioddate of this Agreement through the Closing Date (or earlier if this Agreement is terminated by its terms prior to such date), the Company shall Ronson will not, and shall will cause its Representatives officers, directors, employees, representatives and Subsidiaries Affiliates not to: (a) solicit, directly or indirectly, (i) initiate, solicit initiate or encourage the submission of any Acquisition Proposal from any Person, or (including by way of providing confidential or non-public informationb) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussionsdiscussions or negotiations regarding, negotiations furnish any information with respect to, solicit, initiate, encourage, assist or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalparticipate in, or knowingly facilitate in any other manner any effort or attempt by and Person to do or seek any of the foregoing.
(iiib) enter into Notwithstanding anything to the contrary contained in this Agreement, if at any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) time following the execution, delivery and performance date of this Agreement and prior to Closing: (i) Ronson has received a bona fide written proposal from a third party; (ii) the other Transaction Agreements Board determines in good faith, after consultation with its financial advisors and counsel, that such proposal constitutes a Superior Proposal; and (iii) such action is necessary to comply with its fiduciary duties to the consummation shareholders of Ronson under applicable Legal Requirements, then Ronson may (x) furnish information with respect to the Transactions shall not be deemed a violation of this Section 8.03(a) Selling Companies to the Person making such proposal; and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, discussions or negotiations or transactions with any third party such Person regarding such proposal; provided that Ronson shall have notified the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, Purchasers in writing (2which may be by electronic mail) the Company (x) notifies SPAC promptly (and in any event within at least twenty-four (24) hours) after the Company has determined hours prior to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on any determination concerning a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments proposal pursuant to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinthis Section 7.10(b), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(bc) During Notwithstanding anything to the Interim Periodcontrary in this Agreement, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (if Ronson receives a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction proposal which constitutes a Superior Proposal, or (iii) enter into the Board may, at any agreement or deliver any agreement or instrument (including a confidentiality agreementtime prior to the Closing, letter if the Board determines in good faith, after consultation with counsel, that such action is necessary to comply with its fiduciary duties to the shareholders of intentRonson under applicable Legal Requirements, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of terminate this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed to pursue a violation of this Section 8.03(b). SPAC agrees definitive agreement with respect to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction such Superior Proposal.
Appears in 1 contract
Exclusivity. (a) During Between the Interim PeriodEffective Date and the earlier of Closing or termination of this Agreement, the Company shall not, Chex Entities and their respective Affiliates will not (and shall cause its Representatives their respective agents, employees and Subsidiaries Affiliates not to), directly or indirectly: (i) sell or agree to sell, or solicit any proposal from, or initiate or engage in discussions or negotiations with, any Person or group of Persons other than Game Financial and its Affiliates and representatives, concerning any proposal to acquire, directly or indirectly, and through an asset or stock acquisition, merger or other structure, the Business, the Assets, or any portion thereof; (iii) initiate, solicit provide confidential information concerning the Business or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead the Assets to any purchase such person or group for use in the evaluation of shares a potential acquisition of all or other Equity Securities of the Company or a material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) Assets or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, Business; or (iii) enter into otherwise cooperate in any agreement way with, assist, participate in, facilitate or deliver encourage, any agreement effort or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal attempt by any other Person to do or other agreement or instrument) related to seek any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation foregoing; provided, however, that the board of this Section 8.03(adirectors of FastFunds may, to the extent it determines in good faith (after consultation with outside legal counsel) and (y) nothing in this Section 8.03(a) shall be construed to permit that the Company (or any of its Subsidiaries) failure to take any action that is otherwise of the foregoing prohibited actions could create a reasonable possibility of a breach of its fiduciary duties to the stockholders of FastFunds under applicable Law, take any of the following actions to the extent such board of directors determines reasonably necessary to satisfy such fiduciary duties: (A) furnish information with respect to the Chex Entities to any Person pursuant to a customary confidentiality agreement; or restricted by the terms of this Agreement (including Section 6.01)B) participate in negotiations regarding an Acquisition Proposal. The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and Chex Entities will promptly communicate to SPAC in reasonable detail provide Game Financial written notice of their receipt of any Acquisition Proposal setting forth the material terms and substance thereofconditions of such proposal, and the Company shallshall provide copies of all information provided to a Person pursuant to this subsection, and shall cause its Representatives and Subsidiaries to, cease any and keep Game Financial fully informed of all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file Acquisition Proposal entered into in accordance with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalssubsection.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fastfunds Financial Corp)
Exclusivity. (a) During the Interim each Pre-Closing Period, the Company Seller shall not, and shall cause its Affiliates (including the Companies) and any of its or their respective Representatives and Subsidiaries not to, directly or indirectly, (ia) take any action to solicit, initiate, solicit facilitate, encourage or encourage continue inquiries regarding an Acquisition Proposal; (including by way of providing confidential b) enter into discussions or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalwith, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iiic) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal agreements or other agreement instruments (whether or instrumentnot binding) related regarding an Acquisition Proposal. Seller shall immediately cease and cause to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shallterminated, and shall cause its Representatives and Subsidiaries to, cease any Affiliates (including the Companies) and all their respective Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Persons conducted heretofore with respect to a possible Acquisition Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company Seller shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four one (241) hoursBusiness Day after receipt thereof by Seller, its Affiliates (including the Companies) after or their respective Representatives) advise Purchaser orally and in writing of any Acquisition Proposal or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal and the Company has determined to pursue material terms and conditions thereof and the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis identity of the statusparty making such Acquisition Proposal or inquiry. Seller agrees that the rights and remedies for noncompliance with this Section 6.9 shall include having such provision specifically enforced by any court having equity jurisdiction, discussions, negotiations it being acknowledged and terms (including agreed that any developments, amendments such breach or proposed amendments threatened breach shall cause irreparable injury to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, Purchaser and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into money damages would not provide an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees adequate remedy to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC Purchaser. Seller shall not, and shall cause its Representatives and Affiliates (including the Sponsor Companies) not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with release any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalfrom, or waive any provision of, any confidentiality or standstill agreement to which it is a party and Seller also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (iiiwhether by merger, acquisition of stock or assets or otherwise) enter into any agreement Company, if any, to return (or deliver any agreement or instrument (including a if permitted by the applicable confidentiality agreement, letter destroy) all confidential information heretofore furnished to such Person by or on behalf of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC Seller or any of its Affiliates (including the Companies) or any of their respective Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposaland, and will promptly communicate if requested by Purchaser, to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalenforce such Person’s obligation to do so.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (SPI Energy Co., Ltd.)
Exclusivity. (a) During Until the Interim Periodearlier of the Closing or the termination of this Agreement, without the prior written consent of the Investor, neither the Company shall not, and shall cause nor any of its Representatives and Subsidiaries not toshall, directly or indirectly, take (and the Company shall not authorize or permit any directors, officers or employees of the Company to take and shall not permit any of its Affiliates or representatives to take) any action to (i) initiate, solicit or encourage (including by way of providing confidential or furnishing non-public information), solicit, initiate or facilitate any Competing Securities Issuance, (ii) enter into any inquiriesagreement with respect to any Competing Securities Issuance or enter into any agreement, proposals arrangement or offers understanding requiring it to abandon, terminate or fail to consummate any of the Transactions or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any Person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or may would reasonably be expected to lead to, any Competing Securities Issuance. Prior to any purchase of shares or other Equity Securities of the Closing, the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) use reasonable best efforts to take any action all actions reasonably necessary to ensure that is otherwise prohibited or restricted by the terms directors, officers and employees of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction ProposalSubsidiaries, do not, and will promptly communicate to SPAC the extent within the Company’s control, other Affiliates or representatives do not take or do any of the actions referenced in reasonable detail the terms immediately foregoing sentence. Upon execution of this Agreement and substance thereofprior to the Closing, and unless the Investor otherwise consents in writing, the Company shall, and shall cause its Representatives and Subsidiaries toif applicable, cease immediately and cause to be terminated any and all existing discussions or negotiations or discussions with any person or group parties conducted heretofore with respect to any Competing Securities Issuance. In the event that a Change of persons Control (other than SPAC and its Representativesas defined in the Certificate of Designations) regarding an Alternative Transaction Proposal. During is consummated prior to the Interim PeriodClosing, the Company will not confidentially submit pay to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) each Investor Party their Pro Rata Share of an amount equal to the contrary, Make-Whole Amount (as defined in the Company shall be permitted Certificate of Designations) (assuming for these purposes all shares of Series A Preferred Stock had been issued to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, Investor Parties immediately prior to November 1, 2021, (x) initiate, solicit or encourage (including by way the Change of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinControl), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Investment Agreement (Box Inc)
Exclusivity. (a) During the Interim Period, the Company SHB shall not, and nor shall cause its Representatives and Subsidiaries not it permit any Affiliate of SHB or any officer, director or employee of any of them, or any investment banker, attorney, accountant or other representative retained by SHB or any SHB Affiliate to, directly or indirectly, solicit, encourage, initiate or engage in discussions or negotiations with, or respond to requests for information, inquiries, or other communications from, any person other than TFC concerning the fact of, or the terms and conditions of, this Agreement, or concerning any acquisition of SHB, any SHB Subsidiary, or any assets or business thereof (i) initiateexcept that SHB officers may respond to inquiries from analysts, solicit Regulatory Authorities and holders of SHB Capital Stock in the ordinary course of business); and SHB shall notify TFC immediately if any such discussions or encourage (including negotiations are sought to be initiated with SHB by way of providing confidential any person other than TFC or non-public if any such requests for information) any , inquiries, proposals or offers that constitute or may reasonably be expected communications are received from any person other than TFC. If, and only to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)extent that, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (xi) the executionSHB Board reasonably determines in good faith, delivery and performance after consultation with its outside legal counsel, that such action would be required in order for the directors of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall SHB to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not be deemed a solicited in violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) 4.7 that the SHB Board believes is a Superior Proposal, provided, however, that no Acquisition Proposal shall be construed considered a Superior Proposal unless, during the three (3) day period following TFC's notification of the Superior Proposal, SHB and its advisors shall have negotiated in good faith with TFC to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by make adjustments in the terms and conditions of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if such that the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Acquisition Proposal would no longer constitute a Superior Proposal, and will promptly communicate such negotiations fail to SPAC result in reasonable detail the terms necessary adjustments to this Agreement; and substance thereof, and the Company shall, and shall cause (ii) SHB provides notice to TFC of its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit decision to or file take such action in accordance with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this requirements of Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if4.7(b), SHB may (1) none of furnish information with respect to SHB to any person making such Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by SHB after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to TFC than, the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate terms contained in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financingsuch agreement between SHB and TFC, (2) participate in discussions or negotiations regarding an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and withhold, withdraw, amend or modify the Company recommendation for SHB shareholder approval of this transaction.
(xb) notifies SPAC SHB shall notify TFC promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, or any material modification of or material amendment to any Acquisition Proposal, or any request for nonpublic information relating to SHB or for access to the properties, books, or records of SHB by any Person that informs the SHB Board or a member of senior management of SHB that it is considering making, or has made, an Acquisition Proposal. Such notice to TFC shall be made orally and in writing, and shall indicate the identity of the Person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requested non-public information or access to the books and records of SHB, and the material terms of any such Acquisition Proposal and any modification or amendment to such Acquisition Proposal. SHB shall keep TFC fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any such Acquisition Proposal, indication or request. SHB also shall promptly, and in the any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing , notify TFC, orally and in writing, if it enters into discussions or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including concerting any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults Acquisition Proposal in accordance with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinSection 4.7(a), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement until the Effective Time or termination of this Agreement pursuant to Article 8, the Company shall will not, and shall cause nor will it authorize or permit any of its Representatives and Subsidiaries not officers, directors, Affiliates or employees or any investment banker, attorney or other advisor or representative retained by it to, directly or indirectly, (i) initiatesolicit, solicit initiate or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of providing confidential ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information) information with respect to, or take any inquiries, proposals other action to facilitate any inquiries or offers the making of any proposal that constitute constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any purchase Acquisition Proposal, except as to disclose the existence of shares these provisions, (iv) endorse or other Equity Securities recommend any Acquisition Proposal, or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that prior to the adoption of this Agreement by the required Company Stockholder vote, this Section 6.10(a) shall not prohibit the Company or material portion of the assets of from furnishing nonpublic information regarding the Company and its Subsidiaries (on subsidiaries to, entering into a consolidated basis) confidentiality agreement with or entering into discussions with, any person or group in response to a Superior Proposal or any mergeroffer or proposal that the Company Board reasonably determines in good faith is reasonably likely to lead to a Superior Proposal submitted by such person or group (and not withdrawn), business combination or other similar transaction the Company Board from recommending that the Company Stockholders approve a Superior Proposal if (A) neither the Company nor any representative of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in subsidiaries shall have violated any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing restrictions set forth in this Section 8.03(a6.10, including, but not limited to, obligations under clause (i) shall be construed to permit above, (B) the Company Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Company Board to comply with its fiduciary obligations to the Company Stockholders under California Law, (C) prior to furnishing any such nonpublic information to, or entering into discussions with, such person or group, the Company gives Parent written notice of the identity of such person or group and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such person or group and the Company receives from such person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person or group by or on behalf of the Company, and (D) contemporaneously with furnishing any of its Subsidiaries) such nonpublic information to take any action that is otherwise prohibited such person or restricted group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the terms of Company to Parent); provided, further, however, that the Company shall not consummate any transaction(s) contemplated by any Superior Proposal unless and until the Company has first terminated this Agreement (including pursuant to Section 6.01)8.1(i) hereof. The Company agrees and its subsidiaries will, and will cause their respective officers, directors, Affiliates, employees, investment bankers, attorneys and other advisors and representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to promptly notify SPAC if any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Representatives subsidiaries or Subsidiaries receive any offer investment banker, attorney or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations other advisor or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form representative of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which or any of its subsidiaries shall also contain be deemed to be a customary voting provision in which such Person agrees to vote (whether at a meeting or breach of this Section 6.10 by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsCompany.
(b) During In addition to the Interim Periodobligations of the Company set forth in Section 6.10(a), SPAC the Company as promptly as practicable shall notadvise Parent in writing of any Acquisition Proposal or of any request for nonpublic information or other inquiry which the Company reasonably believes could lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (to the extent known), and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation identity of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group making any such request, inquiry or Acquisition Proposal. The Company agrees to keep Parent informed on a current basis of persons the status and details (other than the Company and its Representativesincluding any material amendments or proposed amendments) regarding a SPAC Alternative Transaction of any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) During From the Interim Perioddate of this Agreement and until the earlier of the Closing Date and the date on which this Agreement is terminated pursuant to Section 8.1, the Company Seller shall not, and shall cause not authorize or permit any of its Affiliates or any of its or their Representatives and Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit knowingly facilitate or knowingly encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage enter into discussions or participate in negotiations with, or provide any discussionsinformation to, negotiations or transactions with any third party regarding any Alternative Transaction Person concerning a possible Acquisition Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal agreements or other agreement instruments (whether or instrumentnot binding) related regarding an Acquisition Proposal. Seller shall immediately cease and cause to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shallterminated, and shall use reasonable best efforts to cause its Affiliates and its and their respective Representatives to immediately cease and Subsidiaries cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to could lead to the Permitted Equity Financingto, (2) the Company (x) notifies SPAC an Acquisition Proposal and shall promptly (and in any event within twenty-four two (242) hours) Business Days after the Company has determined to pursue the Permitted Equity Financing date hereof) demand that all such Persons return or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed destroy any Confidential Information provided by or on a prompt and timely basis behalf of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities Seller in connection with any Acquisition Proposal. Until the Permitted Financing shall enter into an agreement substantially in the form earlier of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives Closing Date and the Sponsor not todate on which this Agreement is terminated pursuant to Section 8.1, directly Seller shall promptly (and in any event within two (2) Business Days after receipt thereof by Seller or indirectlyits Affiliates or Representatives) advise Purchaser orally and in writing of any Acquisition Proposal, (i) initiateany request for information with respect to any Acquisition Proposal, solicit or encourage (including by way of providing confidential any inquiry with respect to or non-public information) any inquiries, proposals or offers that constitute or may which could reasonably be expected to lead to any business combination transaction between SPAC result in an Acquisition Proposal, the material terms and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”)conditions of such request, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Acquisition Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalinquiry, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation identity of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify Person making the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalsame.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Alight, Inc. / Delaware)
Exclusivity. (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way none of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (Acucela or any of its Subsidiaries) to take any action that is otherwise prohibited Affiliates, or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company Otsuka, or any of its Representatives Affiliates, shall undertake itself, or Subsidiaries receive grant a license to a Third Party or otherwise enable or assist any Third Party, to develop, make, use, offer for sale, sell, import or communication export any Acucela Core Compound or any pharmaceutical product containing any Acucela Core Compound in the Field, or outside of the Field for indications that may result in off-label use of such Acucela Core Compound or * Confidential Treatment Requested. Execution Copy pharmaceutical product, in any country of the Territory, except as otherwise expressly permitted under this Agreement. The forgoing notwithstanding, in the case of a Change of Control with respect to either Party beginning on the date that is * after the effective date of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group Change of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim PeriodControl, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything restrictions set forth in this Section 8.03(a2.1.2(a) shall not apply to any product owned or controlled by such Acquirer or its Affiliates prior to the contraryeffective date of the Change of Control (a “Preexisting Product”), provided that, after the Company effective date of the Change of Control, (i) such Acquirer and its Affiliates shall not use the Confidential Information of either Party pertaining to Potential Collaboration Compounds or Potential Collaboration Products or their Manufacture or use in making, using, offering for sale, selling, importing or exporting such Preexisting Product and (ii) no person who had been an officer, director, employee, consultant, agent or representative of Acucela within * prior to the effective date of the Change of Control shall be permitted to undertake assist the Permitted Equity Financing if (and only if)Acquirer in making, (1) none of using, offering for sale, selling, importing or exporting the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsPreexisting Product.
(b) During From the Interim PeriodEffective Date until *, SPAC shall notexcept pursuant to the Collaboration between the Parties under this Agreement, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or neither Party nor any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC Affiliates shall, and shall cause its Representatives and alone or in collaboration with a Third Party, conduct any clinical development of any VCM Product in the Sponsor toField in any country of the Territory, cease or grant a license to a Third Party to conduct, or otherwise assist or authorize a Third Party in conducting, any and all existing negotiations or discussions with clinical development of any person or group such VCM Product in the Field in any country of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalTerritory.
Appears in 1 contract
Exclusivity. (a) During In consideration of the Interim Periodtime, effort, expense, and other resources the Purchasers have expended and anticipate expending to consummate the transactions contemplated hereby, the Purchasers and the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, agree as follows:
(i) initiateUntil the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, solicit neither the Company nor any of its Affiliates, nor any of their respective officers, directors, employees, representatives, or agents (collectively, the "Company Parties") will, without the prior written consent of the Purchasers, solicit, initiate or encourage (including by way of providing confidential any other proposal or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposaloffer from, or (iii) otherwise enter into any agreement other agreements or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons arrangements (other than SPAC and its Representativesthis Agreement) regarding an Alternative Transaction Proposal. During the Interim Periodwith, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Purchasers), relating to any Alternative Transaction Proposal”; provided, however, that nothing contained in this paragraph 4G(i) shall prohibit the Board, prior to stockholder approval of the transactions contemplated hereby to the extent required ("Stockholder Approval"), from furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written Alternative Transaction Proposal (which did not otherwise result from a breach of this paragraph 4G) if (A) the Board determines in good faith, after consultation with and advice from independent outside legal counsel, that such action is necessary for the Board to comply with its fiduciary duties under applicable law, (B) the Alternative Transaction Proposal would reasonably be expected to constitute a Superior Proposal and (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement (which agreement shall be provided to the Purchasers for information purposes) in form and substance reasonably satisfactory to the Special Committee (which shall be no less favorable to the Company than the confidentiality agreement executed by prospective investors in the Company in connection with the transactions contemplated hereby.
(ii) As long as the agreements in this paragraph 4G are in effect, the Company will notify the Purchasers as promptly as practicable after any Company Party learns that any Person has made any proposal, offer, inquiry or contact with respect to an Alternative Transaction Proposal (including the identity of such Person and the terms of such proposal). The Company represents and warrants to the Purchasers that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction Proposal and the Company will keep the Purchasers fully informed of the status and details (including amendments and proposed amendments) of any such request, Alternative Transaction Proposal or inquiry. The Company further represents and warrants that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction. Prior to taking any of the actions referred to in paragraph 4G(i), the Board shall promptly (but in any event within twelve hours) notify the Purchasers orally and in writing of any action it proposes to take with respect to such Alternative Transaction Proposal. After taking any such action, the Board shall promptly advise the Purchasers orally and in writing of the status of such action as developments arise or as requested by the Purchasers. Without limiting the foregoing, at least two business days (the "Two Day Period") prior to taking any of the actions referred to in paragraph 4G(i), the Board shall notify the Purchasers of any such action it proposes to take and, during the Two Day Period, the Board shall negotiate in good faith with the Purchasers with respect to any revised proposal to acquire the Company's securities that the Purchasers may make prior to or during the Two Day Period.
(iii) Until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, if the Board is entitled to furnish information to, or engage in discussions or negotiations with, any Person on the terms contemplated in paragraph 4G(i), the Board may, prior to Stockholder Approval, (i) withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to the Purchasers, its approval and favorable recommendation of this transactions subject to Stockholder Approval, (ii) engage approve or participate in recommend, or propose to approve or recommend, any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) cause the Company to enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheetagreement in principle, indication of interest, indicative proposal acquisition agreement or other agreement or instrument) related with respect to any SPAC an Alternative Transaction Proposal; provided however, that the executionBoard may only take the actions described in clauses (i)-(iii) if (A) such Alternative Transaction Proposal constitutes a Superior Proposal, delivery (B) the Board shall have determined in good faith, after consultation with and performance advice from independent outside legal counsel, that such action is necessary for the Board to comply with its fiduciary duties under applicable law, (C) the Company has fully complied with paragraph 4G(i) above, and (D) neither the Company nor any of its representatives is in violation of its obligations pursuant to paragraph 4G(i).
(iv) Nothing contained in this Agreement shall prevent the Board from taking, and disclosing to the other Company's stockholders, a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, however, that neither the Company nor the Board shall, except as permitted by paragraph 4G(iii) propose to approve or recommend any Alternative Transaction Agreements Proposal. Without limiting the foregoing, it is understood and the consummation agreed that any violation of the Transactions shall restrictions set forth in the preceding sentence by any representative of the Company, whether or not be deemed a violation acting on behalf of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives Subsidiaries or the Sponsor receive any offer or communication in respect of their Affiliates, shall be deemed to be a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group breach of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalparagraph 4G(iv).
Appears in 1 contract
Sources: Preferred Stock Purchase and Loan Commitment Agreement (Focal Communications Corp)
Exclusivity. (a) During From the Interim Perioddate hereof until the Shanghai Subsidiaries Closing Date, Dragon Parent and the Company Seller shall not, and shall cause its Representatives and Subsidiaries not permit the Company Subsidiaries, or any of their respective Representatives, to, directly or indirectly, :
(i) directly solicit, initiate, solicit seek, entertain, encourage, facilitate, support or encourage (including by way induce the making, submission or announcement of providing confidential any inquiry, expression of interest, proposal or non-public information) any inquiriesoffer that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerto, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), ;
(ii) engage enter into, participate in, maintain or participate in continue any discussionscommunications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, negotiations or transactions deliver or make available to any Person any non-public information with respect to, or take any third party regarding other direct action regarding, any Alternative Transaction Proposal inquiry, expression of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to any such Alternative Transaction to, an Acquisition Proposal, or ;
(iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention to agree to, accept, approve, endorse or recommend) any Acquisition Proposal; or
(iv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal intent or any other agreement Contract contemplating or instrument) related otherwise relating to any Alternative Transaction Acquisition Proposal; provided that .
(xb) On the executiondate hereof, delivery and performance of this Agreement and Dragon Parent, the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, Seller and the Company shall, and shall cause its Representatives and Subsidiaries to, will: (A) immediately cease any and all existing activities, discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit Persons conducted prior to or file on the date hereof with the SEC respect to any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, Acquisition Proposal; and (zB) consults not amend, terminate, waive or fail to enforce any provisions of any confidentiality agreement with SPAC in respect of the Permitted Equity Financing or to any potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsAcquisition Proposal.
(bc) During In the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation event of the Transactions shall not be deemed a violation breach by Dragon Parent or the Seller of this Section 8.03(b9.17, the Purchaser may, in addition to any other remedies that it might have, terminate this Agreement pursuant to Section 8.2(b)(ii). SPAC agrees The obligations of the parties pursuant to promptly notify the Company this Section 9.17 shall terminate if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate this Agreement is terminated pursuant to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalArticle VIII.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (TTM Technologies Inc)
Exclusivity. (a) During Except for the Interim Periodsale of Company Shares pursuant to this Agreement, the Company shall notSellers will not (and the Sellers will cause the Company, its officers and shall cause its Representatives directors and Subsidiaries Sellers' and the Company's respective representatives not to, directly or indirectly, ) (i) initiatesolicit, solicit initiate or encourage (including by way the submission of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage or participate in any discussionsdiscussions or negotiations regarding, negotiations furnish any confidential information with respect to, assist or transactions with participate in, or facilitate in any third party regarding other manner any Alternative Transaction Proposal effort or that may reasonably be expected attempt by any person or other entity to lead make or consummate, an Acquisition Proposal, or seek to do any such Alternative Transaction Proposalof the foregoing, or (iii) sell or otherwise dispose of any of their Company Shares (or any interest therein) or enter into any arrangement or agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and providing for the consummation of the Transactions any Acquisition Proposal or otherwise relating to their Shares, except that this clause (iii) shall not prohibit the disposition of Company Shares by any Seller to a trust established by such Seller for the benefit of such Sellers' heirs, provided that the trustee and all beneficiaries of such trust shall agree to be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted bound by the terms of this Agreement (applicable to such Seller and, to the extent applicable, the Stockholder Agreement and deliver an instrument in writing satisfactory to Buyer and its counsel evidencing such agreement, and provided further that any such disposition shall not relieve such Seller of its obligations, including Section 6.01)indemnification obligations, under this Agreement or the Stockholder Agreement. None of the Sellers will vote their Company Shares in favor of any Acquisition Proposal, except as contemplated by this Agreement. The Company agrees to promptly notify SPAC if term "Acquisition Proposal" means any proposal for a merger or other business combination or similar transaction involving the Company or for the acquisition of a substantial equity interest in (including Company Shares purchased from a Seller) or a substantial part of the assets of the Company. The Sellers shall promptly provide written notice to Buyer of the receipt of any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Acquisition Proposal, and will promptly communicate to SPAC any proposal, inquiry or contact with any person or other entity with respect thereto, and shall, in any such notice, indicate in reasonable detail the identity of the offeror and principal terms and substance thereof, conditions thereof and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none keep Buyer informed promptly of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsstatus thereof.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During the Interim Pre-Closing Period, the Company none of Seller Parties shall not(and Seller Parties shall cause their respective Affiliates, officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors, and shall cause its Representatives and Subsidiaries other agents not to), directly or indirectly: (a) solicit, (i) initiate, solicit initiate or encourage (including by way of providing confidential furnishing any information relating to Seller or non-public information) the Business), or induce or take any inquiries, proposals or offers that constitute or may other action which could reasonably be expected to lead to the making, submission or announcement of, any purchase of shares proposal or inquiry that constitutes, or could reasonably be likely to lead to, an Acquisition Proposal; (b) other Equity Securities than informing Persons of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerprovisions contained in this Section 6.4, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)enter into, (ii) engage continue or participate in any discussions, discussions or any negotiations or transactions with any third party regarding any Alternative Transaction Acquisition Proposal or that may reasonably be expected otherwise take any action to lead facilitate or induce any effort or attempt to any such Alternative Transaction make or implement an Acquisition Proposal; (c) approve, endorse, recommend or (iii) enter into any agreement Acquisition Proposal or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheetmemorandum of understanding or Contract contemplating an Acquisition Proposal or requiring any Seller Party to abandon or terminate its obligations under this Agreement; or (d) agree, indication of interest, indicative proposal resolve or other agreement or instrument) related commit to do any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed foregoing. Seller Parties agree to notify Buyer immediately if any Person makes any proposal, offer, inquiry or contact with respect to an Acquisition Proposal and, to the extent permitted by non-disclosure agreements entered into prior to the date hereof, provide Buyer with a violation description of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the material terms and substance conditions thereof, including the identity of such Person. Seller Parties shall immediately cease and the Company shall, and shall cause its Representatives and Subsidiaries to, cease to be terminated any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than Buyer) concerning any proposal relating to an Acquisition Proposal. With respect to the Company) (a “SPAC Alternative Transaction Proposal”)Persons with whom discussions or negotiations have been terminated, (ii) engage Seller Parties shall use their respective commercially reasonable efforts to obtain the return or participate destruction of, in accordance with the terms of any discussionsapplicable confidentiality agreement, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead confidential information previously furnished to any such SPAC Alternative Transaction Proposal, or (iii) enter into Person by any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC Seller Party or any of its Representatives their respective officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors or other agents. Seller Parties release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Seller Party is a party, without the Sponsor receive any offer or communication in respect prior written consent of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalBuyer.
Appears in 1 contract
Exclusivity. (a) During GA Inc., GBOS Inc. and each Seller agree that between the Interim Perioddate of this Agreement and the earlier of the Closing and the termination of this Agreement in accordance with Article VII, the Company GA Inc., GBOS Inc., and each Seller shall not, and shall cause its take all action necessary to ensure that none of Group Companies or any of their respective Affiliates and Representatives and Subsidiaries not toshall, directly or indirectlyindirectly (a) solicit, (i) initiate, solicit consider, encourage or accept any proposal or offer than constitutes an Acquisition Proposal or (b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage (including by way of providing confidential the submission of, any proposal that constitutes, or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to, an Acquisition Proposal. Each of GA Inc., GBOS Inc. and each Seller immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing. GA Inc., GBOS Inc., and each Seller shall notify Parent promptly, but in any event within 24 hours, in writing if any such Acquisition Proposal, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to Parent shall indicate in reasonable detail the identity of the Person making such Acquisition Proposal, inquiry or other contact and the material terms and conditions of such Acquisition Proposal, inquiry or other contact. None of GA Inc., GBOS Inc., or any Seller shall, and each such Person shall cause its Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Group Company is a party, without the prior written consent of Parent. For purposes of this Agreement, “Acquisition Proposal” means any offer or proposal for, or any indication of interest in, any of the following (other than the transactions contemplated by this Agreement): (i) any direct or indirect acquisition or purchase of shares all or any portion of the capital stock or other Equity Securities equity or ownership interest of the any Group Company or material portion of the assets of any Group Company (other than assets to be sold in the Company and its Subsidiaries (on a consolidated basis) or any merger, ordinary course of business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”consistent with past practice), (ii) engage any merger, consolidation or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead other business combination relating to any such Alternative Transaction Proposal, Group Company or (iii) enter into any agreement recapitalization, reorganization or deliver any agreement other extraordinary business transaction involving or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related otherwise relating to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Group Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. Mercury shall immediately cease, and shall cause its Subsidiaries to immediately cease, and shall direct and use reasonable best efforts to cause its Representatives, to immediately cease, any discussions or negotiations with any Person (other than Gold or its Affiliates) that may be ongoing with respect to a SpinCo Proposal and shall request to have returned or destroyed reasonably promptly any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier to occur of (a) During termination of this Agreement pursuant to Article IX and (b) the Interim PeriodClosing, the Company Mercury shall not, and shall cause its Subsidiaries and shall direct and use reasonable best efforts to cause its Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit knowingly encourage or encourage knowingly facilitate (including by way of providing confidential or non-public informationfurnishing information which has not been previously publicly disseminated) any inquiriesproposal from a third party relating to the acquisition (whether by merger, proposals purchase of stock, purchase of assets or offers otherwise), exclusive license, recapitalization, liquidation, dissolution or other transaction involving any portion of the business or assets of Mercury and its Subsidiaries that, individually or in the aggregate, constitutes 20% or more of the net revenues, net income or assets of the SpinCo Business (taken as a whole) (any of the foregoing, a “SpinCo Proposal”) or any inquiry, offer or proposal that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction SpinCo Proposal”), (ii) engage or participate in any discussionsdiscussions or negotiations, negotiations or transactions furnish to any Person any non-public information relating to the SpinCo Business, SpinCo Assets or the SpinCo Group in connection with any third party regarding any Alternative Transaction SpinCo Proposal or any inquiry, offer or proposal related to, or that may would reasonably be expected to lead to any such Alternative Transaction to, a SpinCo Proposal, or (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any SpinCo Proposal or (iv) approve or authorize, or cause or permit Mercury or any of its Subsidiaries to enter into into, any agreement or deliver any agreement or instrument (including a confidentiality merger agreement, acquisition agreement, reorganization agreement, joint venture agreement, partnership agreement, letter of intent, term sheetmemorandum of understanding, indication of interest, indicative proposal agreement in principle or other similar agreement or instrument) related to document relating to, or providing for, any Alternative Transaction SpinCo Proposal; provided provided, that nothing in this Section 7.10 shall limit Mercury’s ability to pursue or engage in any transaction relating to substantially all of the business of Mercury (x) as opposed to solely the executionSpinCo Business), delivery so long as such transaction would not prevent or materially impair or materially delay ▇▇▇▇▇▇▇’s ability to comply with its obligations hereunder and performance of this under the Separation Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its SubsidiariesDocuments, or its Representatives, prior to November 1, 2021, (x) initiate, solicit consummate the transactions contemplated hereby or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsthereby.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Merger Agreement (Gentherm Inc)
Exclusivity. From and after the execution date of this Agreement and until the earlier of the Closing Date or the termination of this Agreement: (a) During the Interim PeriodCompany, each of its Subsidiaries, and each of their respective Affiliates, employees, directors, officers, investment bankers and other representatives and agents (the Company “Agents”) shall immediately cease and cause to be terminated any discussions or negotiations with any Persons initiated prior to the execution of this Agreement with respect to any Acquisition Proposal and shall, within seven (7) days from the execution date of this Agreement request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in connection with any potential Acquisition Proposal; and (b) the Company, and its Agents shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiatetake any action to facilitate the making of, solicit solicit, encourage, induce, or encourage initiate any Acquisition Proposal, or (including by way ii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement relating to an Acquisition Proposal; or release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which the Company is a party. For purposes of providing confidential this Section, “Acquisition Proposal” shall mean any inquiry, offer or non-public informationproposal (other than an inquiry, offer or proposal from Parent or Transitory Subsidiary) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company an Acquisition Transaction, and its Subsidiaries (on a consolidated basis) or “Acquisition Transaction” shall mean any merger, consolidation or other business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if involving the Company or any of its Representatives Subsidiaries or Subsidiaries receive any offer sale, lease, exchange, transfer or communication in respect other disposition of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations capital stock (or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only ifequity securities), (1) none assets or business of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction ProposalSubsidiaries, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalas contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Emeritus Corp\wa\)
Exclusivity. (a) During the Interim Periodperiod from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, none of the Company Buyer, Merger Sub I or Merger Sub II LLC shall nottake, and nor shall cause its they permit any of their respective Affiliates or Representatives and Subsidiaries not toto take, whether directly or indirectly, (i) any action to solicit, initiate, solicit continue or encourage (including by way of providing confidential engage in discussions or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalwith, or (iii) enter into any agreement with, or deliver encourage, respond, provide information to or commence or continue due diligence with respect to, any agreement Person concerning, relating to or instrument (including a confidentiality agreementwhich is intended or is reasonably likely to give rise to or result in, letter of intentany offer, term sheetinquiry, proposal or indication of interest, indicative proposal written or other agreement or instrument) related oral relating to any Alternative Transaction Business Combination (a “Business Combination Proposal; provided that (x”) other than with the executionCompany, delivery the Seller and performance of this Agreement their respective Affiliates and the other Transaction Agreements and the consummation Representatives. Each of the Transactions shall not be deemed a violation of this Section 8.03(a) Buyer, Merger Sub I and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company Merger Sub II LLC shall, and each shall cause its respective Affiliates and Representatives and Subsidiaries to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the date hereof with respect to, or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction which is reasonably likely to give rise to or result in, a Business Combination Proposal. During the Interim Period, period from the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in date of this Section 8.03(a) Agreement to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none earlier of the CompanyClosing Date and the termination of this Agreement in accordance with Article 10, its Subsidiariesif the Buyer, Merger Sub I, Merger Sub II LLC or its Representativesany of their respective Affiliates or any of their respective Representatives receives any inquiry or proposal with respect to a Business Combination Proposal, prior to November 1then the Buyer, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC Merger Sub I and Merger Sub II LLC shall promptly (and in any no event within twenty-four (24) hours) later than 24 hours after the Company has determined to pursue Buyer, Merger Sub I or Merger Sub II LLC becomes aware of such inquiry or proposal) advise the Permitted Equity Financing Seller’s Representative orally and in writing of such inquiry or potential Permitted Equity Financing, proposal (y) keeps SPAC reasonably informed on a prompt and timely basis including the identity of the status, discussions, negotiations and terms (including any developments, amendments Person making such inquiry or proposed amendments to submitting such terms) of the Permitted Equity Financing or potential Permitted Equity Financingproposal, and (zthe terms thereof) consults with SPAC in respect of the Permitted Equity Financing and shall not respond to any such inquiry or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsproposal.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives period from the date of this Agreement to the earlier of the Closing Date and the Sponsor not totermination of this Agreement in accordance with Article 10, neither the Seller nor the Company shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, (i) any action to solicit, initiate, solicit continue or encourage (including by way of providing confidential engage in discussions or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalwith, or (iii) enter into any agreement with, or deliver encourage, respond, provide information to, any agreement Person concerning, relating to or instrument (including a confidentiality agreementwhich is intended or is reasonably likely to give rise to or result in, letter of intentany offer, term sheetinquiry, proposal or indication of interest, indicative proposal written or other agreement oral relating to the sale of the equity interests of the Company or instrument) related to any SPAC Alternative Transaction Proposal; provided that all or substantially all the execution, delivery and performance assets of this Agreement the Company and the Company Subsidiaries (a “Company Acquisition Proposal”) other Transaction Agreements than with the Buyer and its Affiliates and Representatives. Each of the Seller and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and each shall cause its respective Affiliates and Representatives and the Sponsor to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the date hereof with respect to, or group which is reasonably likely to give rise to or result in, a Company Acquisition Proposal. During the period from the date of persons this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, if the Seller, the Company or any of their respective Affiliates or any of their respective Representatives receives any inquiry or proposal with respect to a Company Acquisition Proposal, then the Company shall promptly (other and in no event later than 24 hours after the Seller or the Company becomes aware of such inquiry or proposal) advise the Buyer orally and in writing of such inquiry or proposal (including the identity of the Person making such inquiry or submitting such proposal, and the terms thereof) and shall not respond to any such inquiry or proposal (except to advise such Person that a prospective purchaser has been granted an exclusive right to negotiate concerning an acquisition of the Company, without identifying the Buyer or its Affiliates). The Company represents and warrants to Buyer that the Company, the Company Subsidiaries and their respective Affiliates are not party to or bound by any agreement relating to the sale of the equity interests of the Company or all or substantially all the assets of the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalthe Company Subsidiaries other than non-disclosure agreements entered into prior to the date of this Agreement with other prospective third parties.
Appears in 1 contract
Sources: Agreement and Plan of Merger (M III Acquisition Corp.)
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement, the Company shall not, and shall cause its Representatives each Subsidiary and Subsidiaries each of their respective directors, officers, employees, financial advisors, representatives and agents not to, directly or indirectly, (i) solicit, initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, or encourage discussion or negotiations or transactions with any third party regarding Person or entity (other than Purchaser) concerning any merger, consolidation, sale of material assets, tender offer for, recapitalization of or accumulation or acquisition of securities issued by Company or any Subsidiary, proxy solicitation, other business combination involving Company or any Subsidiary or any other plan of reorganization of Company or any Subsidiary (including, without limitation, any Employee Stock Ownership Plan structure) (collectively, "Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction ProposalTransaction"), or (iiiii) enter into provide any agreement non-public information concerning the business, properties or deliver assets of Company or any agreement Subsidiary to any Person or instrument entity (including a confidentiality agreementother than to Purchaser). Company shall, letter and shall cause each of intentits Subsidiaries to, term sheetimmediately cease any and all existing activities, indication of interest, indicative proposal or discussions and negotiations with any Person other agreement or instrument) related than Purchaser with respect to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any continue indefinitely the confirmation hearing for their pending reorganization and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding liquidation plans involving an Alternative Transaction ProposalEmployee Stock Ownership Plan. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted immediately notify Purchaser of, and shall disclose to undertake the Permitted Equity Financing if (and only if)Purchaser all details of, (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals discussions or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially described in the form first sentence of this Section 6.10. The provisions of this Section 6.10 are referred to in this Agreement as the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals"Exclusivity Provisions."
(b) During Notwithstanding the Interim Periodprovisions of subsection (a) above, SPAC prior to entry of the Confirmation Orders, the Debtors may, to the extent required by the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee, or any orders entered or approvals or authorizations granted by the Bankruptcy Court in the Case during the period prior to Closing (collectively, the "Bankruptcy-Related Requirements"), or to the extent that the board of directors of Company determines, in good faith after consultation with outside legal counsel, that such board's fiduciary duties under applicable Governmental Rule require it to do so, participate in discussions or negotiations with, and, subject to the requirements of subsection (c) below, furnish information to any Person, entity or group after such Person, entity or group has delivered to the Debtors, in writing, an unsolicited bona fide offer to effect an Alternative Transaction that the board of directors of Company in its good faith judgment determines, after consultation with its independent financial advisors, would result in a transaction more favorable to the stakeholders of the Debtors from a financial point of view than the transactions contemplated hereby and for which financing, to the extent required, is then committed (or which, in the good faith judgment of the board of directors, is reasonably capable of being obtained) and which (in the good faith judgment of the board of directors) is likely to be consummated (a "Superior Proposal"). In the event the Debtors receive a Superior Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the board of directors of Company from approving such Superior Proposal or requesting authorization of such Superior Proposal from the Bankruptcy Court, if such board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties under applicable Governmental Rule; and in such case, the board of directors of Company may terminate this Agreement pursuant to Section 11.1(f) hereof; provided, however, that Company shall not terminate this Agreement until at least five (5) Business Days after Purchaser's receipt of a copy of such Superior Proposal.
(c) Debtors shall, within one (1) Business Day of the occurrence thereof, notify Purchaser orally and in writing of the receipt of a Superior Proposal. Such notice to Purchaser shall indicate in reasonable detail the identity of the potential acquirer and the material terms and conditions of such Superior Proposal, to the extent known.
(d) Notwithstanding anything to the contrary in this Section 6.10, Company shall not, and shall cause each of its Representatives and the Sponsor Subsidiaries not to, directly or indirectly, provide any non-public information to a third party unless: (i) initiate, solicit or encourage (including by way of providing confidential or Company and its Subsidiaries provide such non-public information) any inquiries, proposals information pursuant to a non-disclosure agreement entered into subsequent to the date hereof with terms regarding the protection of confidential information at least as restrictive as such terms in the Confidentiality Agreement or offers that constitute or may reasonably be expected pursuant to lead to any business combination transaction between SPAC confidentiality agreements existing on the date hereof; and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage such non-public information has been delivered previously or participate made available to Purchaser.
(e) Notwithstanding anything to the contrary in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees 6.10, Company shall be permitted to promptly notify continue the Company if SPAC or any solicitation of expressions of interest in its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalinternational operations.
Appears in 1 contract
Sources: Investment and Purchase Agreement (Danielson Holding Corp)
Exclusivity. (a) During Prior to the Interim PeriodClosing, without the Investor’s prior written consent, neither the Company shall not, and shall cause nor any of its Representatives and Subsidiaries not toshall, directly or indirectly, take (and the Company shall not authorize or permit any directors, officers or employees of the Company or, to the extent within the Company’s control, other Affiliates or representatives of the Company or any of its Subsidiaries to take) any action to (i) initiate, solicit or encourage (including by way of providing confidential or furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (ii) enter into any inquiriesagreement with respect to any Acquisition Proposal or enter into any agreement, proposals arrangement or offers understanding requiring it to abandon, terminate or fail to consummate any of the Transactions or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any Person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or may would reasonably be expected to lead to, any Acquisition Proposal. Prior to any purchase of shares or other Equity Securities of the Closing, the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) use reasonable best efforts to take any action all actions reasonably necessary to ensure that is otherwise prohibited or restricted by the terms directors, officers and employees of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives Subsidiaries and, to the extent within the Company’s control, other Affiliates or Subsidiaries receive representatives of the Company or any offer of its Subsidiaries, do not take or communication do any of the actions referenced in respect the immediately foregoing sentence. Upon execution of an Alternative Transaction Proposalthis Agreement and prior to the Closing, and will promptly communicate to SPAC unless the Investor otherwise consents in reasonable detail the terms and substance thereofwriting, and the Company shall, and shall cause its Representatives and Subsidiaries toif applicable, cease immediately and cause to be terminated any and all existing discussions or negotiations or discussions with any person or group of persons (other than SPAC parties conducted heretofore with respect to an Acquisition Proposal and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file promptly request that all confidential information with the SEC any Registration Statement respect thereto furnished on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form behalf of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsbe returned.
(b) During Prior to the Interim PeriodClosing, SPAC the Company shall, as promptly as practicable (and in no event later than one business day after receipt thereof), advise the Investor of any Acquisition Proposal, potential Acquisition Proposal, or any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including, but not limited to, the identity of the Person and its Affiliates making the same, that it may receive in respect of any such Acquisition Proposal, potential Acquisition Proposal, or inquiry, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall notfurnish to the Investor a copy of any such proposal or inquiry, if it is in writing, or a reasonably accurate written summary of any such proposal or inquiry, if it is not in writing, and shall cause its Representatives and keep the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may Investor informed on a reasonably be expected to lead prompt basis with respect to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions developments with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalforegoing.
Appears in 1 contract
Exclusivity. (a) During From and after the Interim Perioddate hereof until the Closing or termination of this Agreement pursuant to Article IX (Termination), the Company shall Seller will not, and shall cause nor will it authorize or permit any of its Subsidiaries, or its or their respective Representatives and Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit seek, entertain, intentionally encourage, intentionally facilitate, support or encourage induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer concerning the sale or other conveyance of the Purchased Assets or Seller Licensed Intellectual Property (including whether by way of providing confidential merger, purchase of capital stock, purchase of assets or non-public informationotherwise) (an “Acquisition Proposal”); (ii) hold or participate in any inquiriesnegotiations or discussions or enter into any agreements with any Person concerning, proposals or offers that constitute or may would reasonably be expected to lead to, an Acquisition Proposal; or (iii) deliver or make available to any purchase Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of shares interest, proposal or other Equity Securities of the Company offer that constitutes, or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may would reasonably be expected to lead to any such Alternative Transaction to, an Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that . Seller shall (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shallimmediately cease, and shall cause its Representatives Subsidiaries to immediately cease, and Subsidiaries to, cease cause to be terminated any and all existing activities, discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit Persons conducted prior to or file on the date hereof with the SEC respect to any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity FinancingAcquisition Proposal, (y) keeps SPAC reasonably informed on a prompt and timely basis not amend, terminate, waive or fail to enforce any provisions of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments confidentiality agreement with respect to such terms) of the Permitted Equity Financing or any potential Permitted Equity Financing, Acquisition Proposal and (z) consults with SPAC promptly request, in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection accordance with the Permitted Financing terms of any such confidentiality agreement, the return or destruction of any confidential information previously furnished pursuant thereto. If any Representative of Seller or its Subsidiaries takes any action that Seller is obligated pursuant to this Section to cause such Representative not to take, then Seller shall enter into an agreement substantially in the form be deemed for all purposes of the Company Shareholder Lock-Up and Support this Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalshave breached this Section.
(b) During Seller shall promptly notify Purchaser in writing after receipt by Seller or any of its Subsidiaries (or, to the Interim PeriodKnowledge of Seller, SPAC shall notby any of its or their respective Representatives), and shall cause its Representatives and the Sponsor not to, directly or indirectly, of (i) initiateany Acquisition Proposal, solicit or encourage (including by way of providing confidential or non-public informationii) any inquiriesinquiry, proposals expression of interest, proposal or offers offer that constitute constitutes, or may would reasonably be expected to lead to, an Acquisition Proposal or (iii) any request for non-public information directly and primarily related to the Purchased Assets or for access to any business combination transaction between SPAC and of the properties, books or records of the Seller Parties by any other Person (other than Purchaser not in the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions ordinary course of business consistent with any third party regarding any SPAC Alternative Transaction Proposal past practice or that may the Seller Parties reasonably believe would be expected to lead to any an Acquisition Proposal. Such notice shall describe (1) the terms and conditions of such SPAC Alternative Transaction Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementinquiry, letter of intent, term sheet, indication expression of interest, indicative proposal or other agreement or instrumentoffer, and (2) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation identity of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC Person or Group making any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction such Acquisition Proposal, inquiry, expression of interest, proposal or offer. Seller shall keep Purchaser promptly and will promptly communicate fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Purchaser a complete and correct copy of each such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. Seller shall provide Purchaser with forty-eight (48) hours’ prior notice (or such lesser prior notice as is provided to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease members of Seller’s board of directors) of any and all existing negotiations or discussions with meeting of Seller’s board of directors at which Seller’s board of directors is reasonably expected to discuss any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cray Inc)
Exclusivity. (a) During From and after the Interim PeriodAgreement Date until earlier of the Closing or the termination of this Agreement pursuant to Article IX hereof, the Company shall will not, and shall nor will it authorize or permit any of its officers, directors, Company Affiliates, or employees or any investment banker, attorney or other advisor or representative retained by any of them, nor will the Company solicit or cause its Representatives stockholders (such officers, directors, Company Affiliates, employees, investment banks, attorneys, other advisors and Subsidiaries not representatives, and stockholders collectively, the “Company Advisors”) to, directly or indirectly, (i) solicit, initiate, solicit seek, support or encourage (including by way induce the making, submission or announcement of providing confidential any inquiry, expression of interest, proposal or non-public information) any inquiriesoffer that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerto, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage enter into, participate in, maintain or participate in continue any discussionscommunications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, negotiations or transactions deliver or make available to any Person any non-public information with respect to, or take any third party regarding other action regarding, any Alternative Transaction Proposal inquiry, expression of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to any such Alternative Transaction to, an Acquisition Proposal, or (iii) agree to, accept, approve, endorse or recommend, or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend, any Acquisition Proposal, (iv) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal intent or any other agreement Contract contemplating or instrument) related otherwise relating to any Alternative Transaction Proposal; provided that Acquisition Proposal or (xv) submit any Acquisition Proposal to the execution, delivery and performance vote of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(aany Company Stockholders.
(b) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees will immediately cease and cause to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease be terminated any and all existing activities, discussions or negotiations or discussions with any person Persons conducted prior to or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction on the Agreement Date with respect to any Acquisition Proposal. During the Interim PeriodIf any Company Advisor, whether in his or her capacity as such or in any other capacity, takes any action that the Company will not confidentially submit is obligated pursuant to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) 7.2 to the contrarycause such Company Advisor not to take, the Company shall be permitted deemed for all purposes of this Agreement to undertake have breached this Section 7.2.
(c) The Company shall immediately notify the Permitted Equity Financing if Purchaser orally and in writing after receipt by the Company (and only if)or, (1) none to the Knowledge of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consentAdvisors) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiateany Acquisition Proposal, solicit or encourage (including by way of providing confidential or non-public informationii) any inquiriesinquiry, proposals expression of interest, proposal or offers offer that constitute constitutes, or may would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or for access to any business combination transaction between SPAC and of the properties or books or records of the Company by any other Person (other than the CompanyPurchaser. Such notice shall describe (A) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any the material terms and conditions of such SPAC Alternative Transaction Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementinquiry, letter of intent, term sheet, indication expression of interest, indicative proposal, offer, notice or request, and (B) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company shall keep the Purchaser fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or other agreement offer and any correspondence or instrumentcommunications related thereto and shall provide to the Purchaser a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide the Purchaser with forty-eight (48) related hours prior notice (or such lesser prior notice as is provided to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation members of the Transactions shall not be deemed a violation Company Board) of this Section 8.03(b). SPAC agrees to promptly notify any meeting of the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to Board at which the Company in reasonable detail Board is reasonably expected to discuss any Acquisition Proposal. ** ** Text Omitted and Filed Separately with the terms Securities and substance thereof, Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.240.24b-2
Appears in 1 contract
Exclusivity. (a) During Until the Interim Periodearlier of the Closing Date or the date of termination of the Agreement pursuant to the provisions of Section 9.5 below, the Company shall notnot (nor will the Company authorize or permit any of its officers, and shall cause its Representatives and Subsidiaries not directors, agents, representatives or affiliates to), directly or indirectly, take any of the following actions: (i) solicit, initiate, solicit entertain, encourage, participate in, conduct discussions with or encourage (including by way of providing confidential or non-public information) engage in negotiations with any inquiries, proposals or offers that constitute or may reasonably be expected to lead Person relating to any merger, consolidation or business combination, of or with the Company, or any purchase or sale of shares the Company's capital stock or other Equity Securities equity securities or any purchase or sale of any of the Company's material assets or any exchange offer or tender offer to the shareholders of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transactions (any such transaction of the Company or its Subsidiaries (being hereafter referred to as an “Alternative Transaction "Acquisition Proposal”"), ; (ii) engage provide any written or participate in any discussions, negotiations or transactions oral information with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected respect to lead the Company to any such Alternative Transaction Person (other than as contemplated in this Agreement or required by applicable law) relating to any Acquisition Proposal, ; or (iii) enter into any agreement or deliver with any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related Person with regard to any Alternative Transaction Acquisition Proposal; provided PROVIDED, HOWEVER, that nothing contained in this Agreement shall prevent the Company or its board of directors from (xA) complying with Rule 14e-2 promulgated under the executionExchange Act with regard to an Acquisition Proposal; (B) engaging in any discussion or negotiations with, delivery and performance or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (C) recommending such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Company or withdrawing or modifying its recommendation in favor of this Agreement and the other Transaction Agreements Merger in compliance with Section 6.3, if and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) only to the contraryextent that, the Company shall be permitted in any such case as is referred to undertake the Permitted Equity Financing if in clause (and only if), (1B) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI thereinC), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiatea majority of the members of the board of directors of the Company concludes in good faith (after consultation with its financial advisors) that such Acquisition Proposal is reasonably capable of being completed, solicit or encourage (including by way taking into account all legal, financial, regulatory and other aspects of providing confidential or non-public information) any inquiriesthe proposal and the Person making the proposal, proposals or offers that constitute or may reasonably be expected and would, if consummated, result in a transaction more favorable to lead to any business combination transaction between SPAC and any other Person (other the Company's shareholders than the Company) transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a “SPAC Alternative Transaction "Superior Proposal”"), (ii) engage a majority of the members of the board of directors of the Company concludes in good faith (after consultation with outside counsel) that such action is necessary for the board of directors to act in a manner consistent with its fiduciary duties under applicable law,(iii) prior to providing any information or participate data to any Person in connection with an Acquisition Proposal by any discussionssuch Person, such board of directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the confidentiality agreement previously entered into between WEC and the Company in connection with their consideration of the Merger, and (iv) prior to providing any information or data to any Person or entering into discussions or negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any Person, the board of directors of the Company notifies WEC of such SPAC Alternative Transaction Proposalinquiries, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication expressions of interest, indicative proposal proposals or other agreement offers received by, any such information requested from, or instrument) related any such discussions or negotiations to be initiated or continued with, any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation Company's representatives indicating, in connection with such notice, the name of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, such Person and will promptly communicate to the Company in reasonable detail the terms and substance thereofconditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors and SPAC shallother representatives referred to in the first sentence hereof of the obligations undertaken in this Section 6.12. The Company agrees that it shall keep WEC informed, on a current basis, of the status and shall cause its Representatives material terms of any such proposals or offers and the Sponsor to, cease status of any and all existing negotiations such discussions or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalnegotiations.
Appears in 1 contract
Sources: Merger Agreement (Winbond Intl Corp)
Exclusivity. (a) During the Interim Pre-Closing Period, without Purchaser’s prior written consent, neither the Company shall notnor any Company Subsidiary shall, and shall cause its Representatives and Subsidiaries not tounless required under applicable Law, directly or indirectly, take (and the Company shall not authorize or permit any directors, officers or employees of the Company or, to the extent within the Company’s control, other Affiliates or representatives of the Company or any Company Subsidiary to take) any action to (i) initiate, solicit or encourage (including by way of providing confidential or furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (ii) enter into any inquiriesagreement with respect to any Acquisition Proposal or enter into any agreement, proposals arrangement or offers understanding requiring it to abandon, terminate or fail to consummate the issuance of the Purchased Shares or any other transaction contemplated by this Agreement or the other Transaction Documents or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any Person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or may would reasonably be expected to lead to, any Acquisition Proposal. Prior to any purchase of shares or other Equity Securities the Closing, the Company shall use reasonable best efforts to take all actions reasonably necessary to ensure that the directors, officers and employees of the Company or material portion of any Company Subsidiary and, to the assets of extent within the Company and its Subsidiaries (on a consolidated basis) Company’s control, other Affiliates or any merger, business combination or other similar transaction representatives of the Company or its Subsidiaries (an “Alternative Transaction Proposal”)any Company Subsidiary, (ii) engage do not take or participate do any of the actions referenced in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance immediately foregoing sentence. Upon execution of this Agreement and during the other Transaction Agreements and Pre-Closing Period, unless the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing Purchaser otherwise consents in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposalwriting, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries toif applicable, cease immediately and cause to be terminated any and all existing discussions or negotiations or discussions with any person or group of persons (other than SPAC parties conducted heretofore with respect to an Acquisition Proposal and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file promptly request that all confidential information with the SEC any Registration Statement respect thereto furnished on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form behalf of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsbe returned.
(b) During the Interim Pre-Closing Period, SPAC and as permitted by applicable Law, the Company shall, as promptly as practicable (and in no event later than one business day after receipt thereof), advise the Purchaser of any Acquisition Proposal or any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including, but not limited to, the identity of the Person and its Affiliates making the same, that it may receive in respect of any such Acquisition Proposal or inquiry, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall notfurnish to the Purchaser a copy of any such proposal or inquiry, if it is in writing, or a reasonably accurate written summary of any such proposal or inquiry, if it is not in writing, and shall cause its Representatives and keep the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may Purchaser informed on a reasonably be expected to lead prompt basis with respect to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions developments with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalforegoing.
Appears in 1 contract
Exclusivity. (a) During Subject to Section 5.6(c), Seller shall immediately cease and desist and discontinue and cause to be terminated any and all existing activities with respect to any of the Interim Period, the Company following and shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectlyindirectly (through any officer, (i) director, former director, affiliate, employee, attorney, accountant, financial advisor, subsidiary, independent representative or independent agent or any other advisor or representative of Seller), solicit, initiate, solicit encourage or encourage take any action to facilitate (including by way of providing confidential furnishing information or non-public informationengaging in discussions or negotiations) any inquiries, proposals or offers that constitute constitute, or may could reasonably be expected to lead to or relate to an acquisition proposal by another party.
(b) Seller shall notify Buyer promptly of any purchase of shares unsolicited inquiries or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) proposals received by, any such information requested from, or any mergersuch discussions or negotiations sought to be initiated or continued with, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (Seller or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by Seller’s representatives indicating, in connection with such notice, the terms name of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereofsuch person, and the Company shall, material terms and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group conditions of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended (a “Proposal”). Seller’s notice of a Proposal will be in writing and delivered to lead to the Permitted Equity Financing or (y) engage or participate Buyer in any discussions, negotiations or transactions accordance with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis Section 9.14 of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support this Agreement (excluding Article VI thereina “Proposal Notice”), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(bc) During For a period of not less than four business days after Seller’s receipt of each Proposal Notice, Seller shall, if requested by Buyer, negotiate in good faith with Buyer to amend this Agreement so that the Interim Period, SPAC shall subject Proposal would not, and shall cause its Representatives and if consummated, result in a transaction that is more favorable to the Sponsor not toSeller, directly or indirectlyfrom a financial point of view, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) transactions contemplated by this Agreement (a “SPAC Alternative Transaction Former Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any . Upon such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance amendment of this Agreement Agreement, the terms and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation conditions of this Section 8.03(b5.6 shall again apply to any inquiry or proposal made by any Person who withdraws a Proposal or who made a Former Proposal (after withdrawal or after such time as their proposal is a Former Proposal). SPAC agrees .
(d) In response to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect receipt of a SPAC Alternative Transaction Proposal that has not been withdrawn after Seller’s compliance with Sections 5.6(b) and 5.6(c), the board of directors of Seller may terminate this Agreement if the board of directors of Seller has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Proposal, such action is necessary in order to comply with its fiduciary obligations under applicable law and will promptly communicate to Seller pays the Company termination fee set forth in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalSection 8.2.
Appears in 1 contract
Exclusivity. (a) During the Interim Pre-Closing Period, Parent and Seller will not, nor will Parent nor Seller authorize or permit the Company shall not, and shall cause or any of its Affiliates or Representatives and Subsidiaries not to, directly or indirectly, (i) solicit, initiate, solicit seek, or encourage (including by way knowingly entertain, encourage, facilitate, support or induce the making, submission or announcement of providing confidential any inquiry, expression of interest, proposal or non-public information) any inquiriesoffer that constitutes, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerto, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Acquisition Proposal”), (ii) engage enter into, participate in, maintain or participate in continue any discussionscommunications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, negotiations or transactions deliver or make available to any Person any non-public information with respect to, or take any third party regarding other action regarding, any Alternative Transaction Proposal inquiry, expression of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any such Alternative Transaction Acquisition Proposal. Parent and Seller will immediately cease and cause to be terminated any and all existing activities,
(b) Without limiting the effectiveness of Section 4.8(a) above, Parent and/or Seller shall, within 24 hours, notify Purchaser orally and in writing after receipt by the Company, Parent or Seller or, to Seller’s Knowledge, any of their Affiliates (or, to Seller’s Knowledge, by any of its respective Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (iii) enter into any agreement or deliver other notice that any agreement or instrument Person is considering making an Acquisition Proposal. Such notice shall describe (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x1) the execution, delivery terms and performance conditions of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction such Acquisition Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis identity of the status, discussions, negotiations and terms Person or group (including any developments, amendments or proposed amendments to as such termsterm’s meaning set forth in Section 13(D) of the Permitted Equity Financing or potential Permitted Equity FinancingSecurities Exchange Act of 1934, as amended, the rules and (zregulations thereunder and related case law) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to making any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) During From the Interim Perioddate hereof until the Closing Date or the date this Agreement is terminated and the transactions provided for in this Agreement are abandoned as contemplated by Article VII, the Company shall notexcept as permitted by Section 6.05, and shall cause its Representatives and Subsidiaries not toneither Seller nor Cardkey, nor their respective directors, officers, or employees, will directly or indirectly, (i) initiatesolicit, solicit or encourage (including by way of providing confidential any proposal or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with offer from any third party regarding relating to the purchase of the Shares or assets of Cardkey or any Alternative Transaction Proposal similar transaction (a "Competing Transaction"), or that may reasonably be expected to lead to enter into discussions with, or furnish any information concerning Cardkey to, any such Alternative Transaction Proposalthird party in connection therewith. In addition, except as permitted by Section 6.05, neither Buyer nor Seller, nor their respective directors, officers, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreementemployees, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by will discuss the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding (other than to its financial advisors, attorneys and accountants) without the Permitted Equity Financing written consent of the other party hereto. Subject to the provisions of clause (b) below and so long as Seller has not breached the preceding provisions of this clause (a) or Section 6.05, this clause (a) shall not preclude Seller from accepting an offer or proposal for a Competing Transaction with a purchase price and other material economic terms, taken as a whole, that are intended more favorable to lead to Seller than the Permitted Equity FinancingPurchase Price and other material economic terms of this Agreement, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on taken as a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalswhole.
(b) During If Seller receives an offer or proposal for a Competing Transaction from a third party with a purchase price and other material economic terms that are more favorable on the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected whole to lead to any business combination transaction between SPAC and any other Person (other Seller than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any Purchase Price and other material economic terms set forth herein and Seller is considering accepting such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposalproposal, and Seller will promptly communicate provide Buyer with a copy of such offer or proposal. Upon receipt of such offer or proposal, Buyer has a right of first refusal, which must be exercised within three (3) business days of receiving the offer or proposal, to the Company in reasonable detail match the terms and substance thereofconditions of the Competing Transaction. If Buyer does not match the offer or proposal within the aforesaid period, then upon written notice from Seller, this Agreement shall terminate and SPAC shallbe of no force or effect; provided, however, if Seller has violated the provisions of clause (a) above in any material respect and shall cause its Representatives such violation results in Seller receiving an offer or proposal for a Competing Transaction, Buyer may compel Seller to reject the competing offer or proposal and proceed with the Sponsor to, cease any acquisition of the Shares pursuant to the terms and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalconditions set forth herein.
Appears in 1 contract
Exclusivity. The Borrower hereby agrees that unless it has obtained the prior written consent of the Lender (awhich may be granted or refused in the Lender’s sole discretion) During to do otherwise, from the Interim PeriodClosing Date through and including the Facility Maturity Date, the Company shall it will not, and shall it will cause EEF and any of its Representatives and Subsidiaries or EEF’s Affiliates not to, directly assign, transfer, pledge, convey, sell or indirectlyotherwise dispose of any PrePrime Receivables, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected except pursuant to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company terms and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance provisions of this Agreement and the other Transaction Agreements and Documents; provided, that the consummation of the Transactions shall not be deemed a violation provisions of this Section 8.03(a9.12 shall not apply to (i) PrePrime Receivables the inclusion of which as Pledged Receivables hereunder, constitutes or would constitute part of the Overconcentration Amount, and (yii) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons PrePrime Receivables (other than SPAC and its RepresentativesPledged Receivables) regarding an Alternative Transaction Proposal. During at a time when the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) Loans Outstanding hereunder are equal to the contraryBorrowing Limit (provided, that the Company Borrower shall be permitted have first made a request for an increase in the Facility Limit (without other changes to undertake this Agreement) and such request has been refused by the Permitted Equity Financing if Lender (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or with non-public information) any inquiries, proposals or offers that are intended acceptance within 45 calendar days of such request deemed for this purpose to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on constitute a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financingrefusal)), and (ziii) consults PrePrime Receivables that constituted Pledged Receivables at the time they were subjected to a Take-Out Securitization and related repayment of Loans in accordance with SPAC Section 2.20 and continue to be subject to such Take-Out Securitization, or that were sold to an unaffiliated third party as contemplated in respect of the Permitted Equity Financing or potential Permitted Equity FinancingSection 2.20, and (3iv) each Person that receives Equity Securities up to a maximum of 25% (or such other percentage as may be determined in connection accordance with the Permitted Financing shall enter into an agreement substantially following sentence) of PrePrime Receivables originated in the form any given calendar quarter that would otherwise qualify as Eligible Receivables. In addition, there is to be no adverse selection in determining which PrePrime Receivables become Pledged Receivables, or are financed with another financing facility. It is understood that EEF is making a corresponding undertaking in favor of the Company Shareholder Lock-Up Borrower under the Transfer and Support Contribution Agreement (excluding Article VI thereinPrePrime), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Mru Holdings Inc)
Exclusivity. So long as this Agreement is in effect, Seller will not (a) During the Interim Period, the Company shall not, and shall Seller will cause its Representatives and Subsidiaries respective Affiliates or representatives not to, directly or indirectly, ) (i) encourage, solicit, initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (continue inquiries regarding an “Alternative Transaction Acquisition Proposal”), ; (ii) engage enter into discussions or participate in negotiations with, or provide any discussionsinformation to, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Person concerning a possible Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal agreements or other agreement instruments (whether or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representativesbinding) regarding an Alternative Transaction Acquisition Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company The Seller Parties shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four two (242) hoursdays after receipt thereof by the Seller Parties or any of their respective beneficial owners) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, advise Buyer orally and in writing of (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public informationA) any inquiriesAcquisition Proposal, proposals any request for information with respect to an Acquisition Proposal, or offers that constitute any inquiry with respect to or may which could reasonably be expected to lead to result in an Acquisition Proposal, (B) the material terms and conditions of such request, Acquisition Proposal or inquiry, and (C) the identity of the person making such request, Acquisition Proposal or inquiry. For purposes hereof, “Acquisition Proposal” means any business combination transaction between SPAC and inquiry, proposal or offer from any other Person (other than Buyer or any of its Affiliates) concerning
(i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company) (a “SPAC Alternative Transaction Proposal”), License or the Purchased Assets; (ii) engage the sale, transfer, exchange or participate in other disposition of the License; (iii) the sale, lease, transfer, exchange or other disposition of any discussionsof the Purchased Assets; or (iv) any other transaction similar to the transaction contemplated by this Agreement, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may could reasonably be expected to lead hinder, restrict or affect the ability of the parties to any such SPAC Alternative Transaction Proposalconsummate the transaction in a timely manner. Notwithstanding the foregoing, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of if this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of is terminated in accordance with its terms, this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC 5.11 shall have no force or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposaleffect.
Appears in 1 contract
Exclusivity. (a) During ICT Holdco agrees that, as and from the Interim Period, date hereof through the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, earlier of: (i) the Closing Date; and (ii) the termination of this Agreement, subject to the written consent of North Sur, ICT Holdco shall not nor permit any of its or ICT Subco’s officers, directors, employees, consultants, advisors, representatives, agents or other parties acting on its behalf, to solicit, initiate, solicit knowingly encourage, cooperate with or encourage facilitate (including by way of providing confidential or furnishing any non-public informationinformation or entering into any form of agreement, arrangement or understanding) the submission, initiation or continuation of any inquiries, oral or written inquiries or proposals or offers that constitute or may reasonably be expected to lead to any purchase expressions of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any mergerinterest regarding, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal constituting or that may reasonably be expected to lead to any such Alternative Transaction Proposalactivity, arrangement or (iii) enter into transaction or propose any agreement activities or deliver solicitations in opposition to or in competition with the Transaction, and without limiting the generality of the foregoing, not to sell any agreement of the ICT Assets or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative the ICT Business or induce or attempt to induce any other person to initiate any shareholder proposal or other agreement “takeover bid,” exempt or instrument) related otherwise, within the meaning of the Securities Act (Alberta), for securities or ICT Assets, nor to undertake any transaction or negotiate any transaction which would be or potentially could be in conflict with the Transaction, including, without limitation, allowing access to any Alternative Transaction Proposal; provided that (x) the executionthird party to conduct due diligence, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed nor to permit the Company (or any of its Subsidiaries) officers or directors to take any action that is otherwise prohibited or restricted authorize such access, except as required by statutory obligations. In the terms of this Agreement (event ICT Holdco, including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive ICT Subco’s officers or directors, receives any formal written form of offer or communication inquiry, ICT Holdco shall forthwith (in respect any event within one business day following receipt) notify North Sur of an Alternative Transaction Proposalsuch offer or inquiry and provide North Sur with such details as it may request.
(b) North Sur agrees that, as and will promptly communicate to SPAC in reasonable detail from the terms date hereof through the earlier of: (i) the Closing Date; and substance thereof(ii) the termination of this Agreement, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) subject to the contrarywritten consent of ICT Holdco, the Company it shall be permitted not nor permit any of its officers, directors, employees, consultants, advisors, representatives, agents or other parties acting on its behalf, to undertake the Permitted Equity Financing if (and only if)solicit, (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit knowingly encourage, cooperate with or encourage facilitate (including by way of providing confidential or furnishing any non-public informationinformation or entering into any form of agreement, arrangement or understanding) the submission, initiation or continuation of any inquiries, oral or written inquiries or proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussionsexpressions of interest regarding, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal constituting or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalactivity, arrangement or (iii) enter into transaction or propose any agreement activities or deliver solicitations in opposition to or in competition with the Transaction, and without limiting the generality of the foregoing, not to sell any agreement of the North Sur Assets or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative North Sur’s business or induce or attempt to induce any other person to initiate any shareholder proposal or other agreement “takeover bid,” exempt or instrument) related otherwise, within the meaning of the Securities Act (Alberta), for securities or North Sur Assets, nor to undertake any transaction or negotiate any transaction which would be or potentially could be in conflict with the Transaction, including, without limitation, allowing access to any SPAC Alternative Transaction Proposal; provided that the executionthird party to conduct due diligence, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees nor to promptly notify the Company if SPAC or permit any of its Representatives officers or directors to authorize such access, except as required by statutory obligations. In the Sponsor receive event the North Sur, including any of its officers or directors, receives any formal written form of offer or communication inquiry, North shall forthwith (in respect any event within one business day following receipt) notify ICT Holdco of a SPAC Alternative Transaction Proposal, such offer or inquiry and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions provide ICT Holdco with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalsuch details as it may request.
Appears in 1 contract
Sources: Amalgamation Agreement
Exclusivity. From the date of this Agreement until the Closing Date or earlier termination hereof, none of Seller, the Company or any of their Affiliates (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not toshall, directly or indirectly, (i) through any of its Representatives or otherwise, take any action to solicit, initiate, solicit seek, or encourage (including by way of providing confidential any inquiry, proposal or non-public information) offer from, furnish any inquiriesinformation to, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussionsdiscussions or negotiations with, negotiations or transactions with any third party (other than Purchaser or an Affiliate thereof designated by Purchaser) regarding any Alternative Transaction Acquisition Proposal or that may reasonably be expected to lead to (any such Alternative Transaction Proposal, or transaction being a “Third-Party Acquisition”) and (iiib) shall enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related Contract with respect to any Alternative Transaction Acquisition Proposal; provided , and each agrees that any such discussions or negotiations with respect to any Acquisition Proposal (xother than with Purchaser) in progress shall have been terminated on or prior to the executiondate hereof. Seller, delivery the Company and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) their Affiliates, as applicable, shall be construed to permit responsible for the Company (or any conduct of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms each of this Agreement (including Section 6.01)their Representatives. The Company agrees to promptly notify SPAC if Any of Seller, the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposaltheir Affiliates, and will as the case may be, shall notify Purchaser promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, existence or its Representatives, prior to November 1, 2021, (x) initiate, solicit upon the receipt of any such proposal or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned inquiry by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives of any proposal for, or inquiry respecting, any Third-Party Acquisition by any Person that, following the date hereof, informs Seller or the Sponsor receive any offer Company in writing that it is considering making or communication in respect of has made such a SPAC Alternative Transaction Proposal, and proposal or inquiry. Such notice to Purchaser will promptly communicate to the Company indicate in reasonable detail the identity of the Person making the proposal or inquiry, including the identity of the ultimate parties in interest if known, and the terms and substance thereofconditions of such proposal or inquiry. Unless the board of directors of Seller has received advice of counsel that it is required pursuant to fiduciary duties to act otherwise (in which case reasonable prior notice will be given to Purchaser), so long as this Agreement remains in effect and SPAC shallhas not been terminated, and neither Seller’s or the Company’s board of directors nor any committee thereof shall cause (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Purchaser, its Representatives and the Sponsor toapproval of this Agreement with respect to any Acquisition Proposal, cease (ii) approve or recommend, or propose to approve or recommend, any and all existing negotiations or discussions with any person or group of persons Acquisition Proposal (other than as contemplated by this Agreement) or (iii) authorize Seller or the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalto enter into any agreement with respect to any Acquisition Proposal (other than as contemplated by this Agreement).
Appears in 1 contract
Exclusivity. (a) During the Interim Period, but only to the Company extent not inconsistent with the fiduciary duties of the Acquiror Board (as determined by the Acquiror Board in good faith), Acquiror shall notnot take, and nor shall cause it permit any of its Affiliates or Representatives and Subsidiaries not toto (i) take, whether directly or indirectly, (i) any action to solicit, initiate, solicit continue, encourage, knowingly facilitate, continue inquiries regarding or encourage engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (including by way other than the Company, its stockholders or any of providing confidential their Affiliates or non-public information) Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any inquiriesoffer, proposals inquiry, proposal or offers that constitute indication of interest, written or may reasonably be expected to lead oral relating to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries Business Combination (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Business Combination Proposal”)) other than with the Company, its stockholders and their respective Affiliates and Representatives, (ii) engage enter into discussions or participate in negotiations with, or provide any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead non-public information to any such Alternative Transaction Proposal, person concerning a possible Business Combination Proposal or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal agreements or other agreement instruments (whether or instrumentnot binding) related to any Alternative Transaction regarding a Business Combination Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company Acquiror shall, and shall cause its Affiliates and Representatives and Subsidiaries to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the date hereof with respect to, or group of persons which is reasonably likely to give rise to or result in, a Business Combination Proposal.
(b) In addition to the other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Periodobligations under Section 7.11, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company Acquiror shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (2448 hours after receipt thereof by the Acquiror or its representatives) hours) after advise the Company has determined orally and in writing of receipt of any Business Combination Proposal by the Acquiror, any request for information with respect to pursue the Permitted Equity Financing any Business Combination Proposal, or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments inquiry with respect to or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead result in an Business Combination Proposal, the material terms and conditions of such request, Business Combination Proposal or inquiry, and the identity of the person making the same.
(c) The Acquiror agrees that the rights and remedies for non-compliance with this Section 7.11 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to any business combination transaction between SPAC the Company and any other Person (other than that money damages would not provide an adequate remedy to the Company.
(d) (a “SPAC Alternative Transaction Proposal”)For the avoidance of doubt, (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided it is understood and agreed that the execution, delivery covenants and performance of agreements contained in this Agreement and the other Transaction Agreements and the consummation of the Transactions Section 7.11 shall not be deemed a violation prohibit Acquiror, any of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC its Affiliates or any of its Representatives from taking any actions in the ordinary course of business that are not in violation of any provision of this Section 7.11 (such as answering phone calls) or the Sponsor receive informing any offer or communication in respect of Person inquiring about a SPAC Alternative Transaction possible Business Combination Proposal, as applicable, of the existence of the covenants and will promptly communicate to the Company agreements contained in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalthis Section 7.11.
Appears in 1 contract
Exclusivity. (a) During From the Interim PeriodExecution Date until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company Parent and Merger Sub shall not, and shall use their reasonable best efforts to cause its their Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit or knowingly encourage (including by way means of providing confidential furnishing or disclosing information), knowingly facilitate, discuss (with a third party) or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Parent Acquisition Proposal; (ii) furnish or disclose any non-public information) information to any inquiriesPerson in connection with, proposals or offers that constitute or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on to, a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Parent Acquisition Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or ; (iii) enter into any agreement Contract regarding a Parent Acquisition Proposal; (iv) prepare or deliver take any agreement steps in connection with an offering of any securities of either Parent of the Merger Sub (or instrument any Affiliate or successor of either Parent of the Merger Sub), other than the issuance of shares of Parent Common Stock as Merger Consideration; or (v) knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. Parent shall (A) notify the Company promptly upon receipt of any Parent Acquisition Proposal by Parent or Merger Sub, and to describe the terms and conditions of any such Parent Acquisition Proposal in reasonable detail (including a confidentiality agreement, letter the identity of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Person making such Parent Acquisition Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (yB) nothing in this Section 8.03(a) shall be construed to permit keep the Company (or reasonably informed on a reasonably current basis of any of its Subsidiaries) modifications to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any such offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company information. Parent shall, and shall cause its Representatives and Subsidiaries Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the Execution Date with respect to, or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit which is reasonably likely to give rise to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contraryresult in, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Parent Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Monterey Capital Acquisition Corp)
Exclusivity. The Borrower hereby agrees that unless it has obtained the prior written consent of the Lender (awhich may be granted or refused in the Lender’s sole discretion) During to do otherwise, from the Interim PeriodClosing Date through and including the Facility Maturity Date, the Company shall it will not, and shall it will cause EEF and any of its Representatives and Subsidiaries or EEF’s Affiliates not to, directly assign, transfer, pledge, convey, sell or indirectlyotherwise dispose of any PrePrime Receivable, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected except pursuant to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company terms and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance provisions of this Agreement and the other Transaction Agreements and Documents; provided, that the consummation of the Transactions shall not be deemed a violation provisions of this Section 8.03(a9.12 shall not apply to (i) PrePrime Receivables the inclusion of which as Pledged Receivables hereunder, constitutes or would constitute part of the Overconcentration Amount, and (ii) PrePrime Receivables (other than Pledged Receivables) at a time when the Loans Outstanding hereunder are equal to the Borrowing Limit (provided, that the Borrower shall have first made a request for an increase in the Facility Limit (without other changes to this Agreement) and such request has been refused by the Lender (with non-acceptance within 45 calendar days of such request deemed for this purpose to constitute a refusal)), and (iii) PrePrime Receivables that constituted Pledged Receivables at the time they were subjected to a Take-Out Securitization and related repayment of Loans in accordance with Section 2.20 and continue to be subject to such Take-Out Securitization, or that were sold to an unaffiliated third party as contemplated in Section 2.20, and (iv) up to a maximum of 25% (or such other percentage as may be determined in accordance with the following sentence) of PrePrime Receivables originated in any given calendar quarter that would otherwise qualify as Eligible Receivables. In the event that the Borrower has both (A) equaled or exceeded at any point in time a principal balance of Loans outstanding of $50,000,000, and (B) requested an increase in the Borrowing Limit to an amount at least equal to $200,000,000 (without other changes to this Agreement), and such request for increase shall have been refused by the Lender (with non-acceptance within 45 calendar days of such request deemed for this purpose to constitute a refusal), then the 25% referred to above in this clause (iv) shall instead be the lesser of (x) 50%, and (y) nothing the percentage equivalent of a fraction, the numerator of which is the sum of all undrawn funding commitments plus all outstanding principal amounts of financings secured by or representing an interest in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereofall PrePrime Receivables other than Pledged Receivables, and the Company shalldenominator of which is the sum of all undrawn funding commitments plus all outstanding principal amounts of financings secured by or representing an interest in all PrePrime Receivables (including Pledged Receivables), and shall cause its Representatives and Subsidiaries to(v) newly originated PrePrime Receivables that would be Eligible Receivables otherwise financeable hereunder, cease any and all existing negotiations or discussions with any person or group but for the existence of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) Early Amortization Event due to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if occurrence of a Replacement Trigger Date as described in clause (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such termsiv) of the Permitted Equity Financing definition thereof, that has not been remedied as described in such clause (iv). In addition, there is to be no adverse selection in determining which PrePrime Receivables become Pledged Receivables, or potential Permitted Equity Financing, and (z) consults are financed with SPAC another financing facility. It is understood that EEF is making a corresponding undertaking in respect favor of the Permitted Equity Financing or potential Permitted Equity Financing, Borrower under the Transfer and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Contribution Agreement (excluding Article VI thereinPrePrime), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Mru Holdings Inc)
Exclusivity. (a) During Until the Interim earlier of (i) the Closing or (ii) the date of termination of this Agreement pursuant to the provisions of Article X (the "Exclusivity Period"), the Company each of Sellers shall not, and shall cause not authorize or permit any of its Representatives and Subsidiaries not toofficers, directors or employees or any investment banker, attorney or other advisor or representative retained by any of them to directly or indirectly, (i) solicit, initiate, solicit encourage or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of providing confidential ii) participate in any discussions or negotiations regarding, or furnish to any person or entity any non-public information) information with respect to, or take any inquiries, proposals action to facilitate any inquiries or offers the making of any proposal that constitute constitutes or may reasonably be expected to lead to to, any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing engage in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group entity with respect to any Acquisition Proposal, or (iv) enter into any letter of persons (other than SPAC and its Representatives) regarding an Alternative Transaction intent or any agreement relating to any Acquisition Proposal. During ; provided, however, that at any time prior to obtaining the Interim PeriodPLM Stockholder Approval, the Company will not confidentially submit Board of Directors of PLM, in response to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) a Superior Proposal, may authorize Sellers to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or furnish non-public information) any inquiries, proposals or offers that are intended information with respect to lead Sellers to the Permitted Equity Financing person or entity which made such Acquisition Proposal pursuant to a customary written confidentiality agreement, and (y) engage or participate in negotiations and discussions regarding such Acquisition Proposal. PLM will immediately cease and cause to be terminated any discussionsexisting activities, discussions and negotiations or transactions conducted prior to the date hereof with respect to any Acquisition Proposal with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, party. PLM shall provide Buyer with (2i) the Company (x) notifies SPAC promptly (and in at least 48 hours prior notice of any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis meeting of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments Board of Directors of PLM at which they are reasonably expected to such terms) of the Permitted Equity Financing or potential Permitted Equity Financingconsider an Acquisition Proposal, and (zii) consults with SPAC in respect five business days prior written notice of a meeting of the Permitted Equity Financing Board of Directors, or potential Permitted Equity Financingany committee thereof, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein)at which they are reasonably expected to withdraw, which shall also contain a customary voting provision in which such Person agrees amend or modify their unanimous recommendation to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of PLM Stockholder Approval or to make the Transactions, including the Company Transaction Proposalsdetermination to recommend instead a Superior Proposal.
(b) During the Interim Exclusivity Period, SPAC shall noteach of the Sellers also agree to: notify Buyer immediately upon receiving any inquiry from any person or entity relating to any Acquisition Proposal; and disclose the identity of any person or entity, making a bona fide offer relating to an Acquisition Proposal, the terms and conditions of such offer, and shall cause its Representatives keep Buyer fully informed on a current basis of the status and details of any Acquisition Proposal.
(c) Each of the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers Sellers acknowledges that constitute or may reasonably be expected this Section 5.12 was a significant inducement for Buyer to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and absence of such provision would have resulted in either (i) a material reduction in the consummation of Purchase Price or (ii) a failure to induce Buyer to enter into this Agreement. The parties hereto agree that irreparable damage would occur in the Transactions shall not be deemed a violation event that the provisions of this Section 8.03(b)5.12 were not performed in accordance with their specific terms or were otherwise breached. SPAC agrees The parties hereto agree that Buyer shall be entitled to promptly notify seek an injunction or injunctions to prevent breaches of the Company if SPAC or any provisions of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, this Section 5.12 and will promptly communicate to the Company in reasonable detail enforce specifically the terms and substance thereofprovisions hereof in any court of the United States or any state having jurisdiction, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease this being in addition to any and all existing negotiations other remedy to which Buyer may be entitled at law or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalin equity.
Appears in 1 contract
Exclusivity. From immediately after the execution and delivery of this Agreement and through the Closing (a) During or the Interim Periodearlier termination of this Agreement pursuant to Article VIII), the Company shall will not, and shall the Company will cause its Representatives and Subsidiaries not to, and will not authorize or permit any of its or their directors, partners, officers, managers, employees, agents, Affiliates or Advisors to, directly or indirectly, take any action to solicit, encourage, support, facilitate, initiate or engage in discussions or negotiations with, or provide any information to, or otherwise cooperate in any way with, or accept any proposal or offer from, any Person (iother than Buyer, Merger Sub and their respective Advisors acting in such capacity) initiateconcerning any merger or recapitalization involving the Company or its Subsidiaries, solicit any sale of the Common Stock or encourage other equity interests of the Company or its Subsidiaries, any sale of all or a material portion of the assets or equity interests of the Company or its Subsidiaries or any similar transaction involving the Company or its Subsidiaries (other than inventory and equipment sold in the ordinary course of business) (an "Acquisition Transaction"). Upon execution of this Agreement the Company will, and will cause its Subsidiaries and their respective officers, directors, Affiliates and Advisors to, immediately cease and cause to be terminated any and all negotiations or discussions with any third party regarding any proposal concerning any Acquisition Transaction, including any access to any online or other datasites. From immediately after the execution and delivery of this Agreement and through the Closing (or the earlier termination of this Agreement pursuant to Article VIII), the Company will, and will use reasonable best efforts to cause its Subsidiaries and its and their directors, partners, officers, managers, employees, agents, Affiliates and Advisors to, promptly (and in no event later than 24 hours after receipt thereof) notify Buyer in writing (including by way electronic mail) of providing confidential any proposal, offer, inquiry or non-public information) any inquiries, proposals notice concerning an Acquisition Transaction or offers that constitute or may would reasonably be expected to lead to a proposal relating to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) Acquisition Transaction, or any merger, business combination or other similar transaction request for information from a Person in respect of the Company or its Subsidiaries (an “Alternative Acquisition Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including the material terms thereof and a confidentiality agreementcopy of any written proposal, letter of intent, term sheet, indication of interest, indicative proposal offer or other agreement or instrumentrequest) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted received by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives Affiliate, Advisor or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none representative of the Company, its Subsidiaries, or its Representatives, prior . The Company will use reasonable best efforts to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably keep Buyer informed on a prompt and timely reasonably current basis of the status(and, discussionsin any event, negotiations and terms (including any developments, amendments or proposed amendments to such termswithin 24 hours) of the Permitted Equity Financing or potential Permitted Equity Financing, status and (z) consults with SPAC in respect details of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead material modifications to any such SPAC Alternative Transaction Proposalproposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalrequest.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to, and shall use its commercially reasonable efforts to cause its and their employees, stockholders and other representatives (including any investment bankers) not to (and shall not authorize any of them to), directly or indirectly: (a) solicit, (i) initiate, solicit encourage or encourage facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (including by way of providing confidential b) participate or non-public information) engage in or continue any inquiriesdiscussions or negotiations regarding, proposals or offers that constitute or may reasonably be expected to lead furnish to any purchase of shares or other Equity Securities Person any nonpublic information of the Company Group with respect to, any Acquisition Proposal; (c) approve, endorse or material portion of the assets of the Company and its Subsidiaries recommend any Acquisition Proposal; (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iiid) enter into any letter of intent or similar document or any contract agreement or deliver commitment contemplating or providing for the consummation of any agreement Acquisition Proposal; or instrument (including a confidentiality agreement, letter e) submit any Acquisition Proposal or any matter related thereto to the vote of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposalthe Stockholders; provided that (x) the execution, delivery and performance solicitation of this Agreement and the other Transaction Agreements and the consummation potential investors with respect to a contemplated issuance of the Transactions Company Capital Stock for bona fide financing purposes shall not be deemed constitute a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) 6.9; provided, however, that any such issuance of Company Capital Stock shall be construed subject to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Parent’s consent in accordance with Section 6.016.1(b)(iii). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, and shall use its commercially reasonable efforts to cause its and their employees, stockholders and other representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended parties conducted heretofore with respect to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC any Acquisition Proposal. As promptly as practicable (and in any event within twenty-four one (241) hoursBusiness Day) after receipt of any Acquisition Proposal or any request for nonpublic information or inquiry which it reasonably believes would lead to an Acquisition Proposal, the Company shall provide Parent with oral and written notice of the material terms and conditions of such Acquisition Proposal. Certain confidential information contained in this document, marked by [*****], has been omitted because Sportradar Holding AG (the “Company”) has determined to pursue that the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, information (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC is not material and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected would likely cause competitive harm to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalpublicly disclosed.
Appears in 1 contract
Exclusivity. The Company shall immediately cease, and shall cause its Subsidiaries and shall use reasonable best efforts to cause its Representatives to immediately cease, any discussions or negotiations with any Person (other than Parent or its Affiliates) that may be ongoing with respect to a SpinCo Proposal, or any inquiry, proposal or offer that would reasonably be expected to lead to a SpinCo Proposal, and shall promptly request that each Person that has been provided with any confidential information in connection with any SpinCo Proposal prior to the date of this Agreement promptly return or destroy such information (if as of the execution of this Agreement not already so requested), including promptly terminating any access by any Person to any physical or electronic data room relating to any SpinCo Proposal. From the date hereof until the earlier to occur of (a) During the Interim Periodtermination of this Agreement pursuant to Article IX and (b) the Effective Time, the Company shall not, and shall cause its Subsidiaries and shall use reasonable best efforts to cause its Representatives and Subsidiaries not to, directly or indirectly, : (i) solicit, initiate, solicit knowingly encourage or encourage knowingly facilitate (including by way of providing confidential or non-public informationfurnishing information which has not been previously publicly disseminated) any inquiries, proposals proposal from or offers that constitute or may reasonably be expected to lead on behalf of a third party relating to any acquisition (whether by merger, purchase of shares Interests, purchase of assets or otherwise), exclusive license, joint venture, partnership, recapitalization, liquidation, dissolution or other Equity Securities of the Company or material transaction involving any portion of the business or assets of the Company and its Subsidiaries (on a consolidated basis) that, individually or any mergerin the aggregate, business combination constitutes 10% or other similar transaction more of the Company net revenues, net income or its Subsidiaries assets of the SpinCo Business (an taken as a whole) (any of the foregoing, a “Alternative Transaction SpinCo Proposal”), (ii) engage or participate in any discussionsinquiry, negotiations proposal or transactions with any third party regarding any Alternative Transaction Proposal or that may offer which would reasonably be expected to lead to any such Alternative Transaction a SpinCo Proposal, (ii) engage in any discussions or negotiations regarding, or furnish to any Person any nonpublic information relating to the SpinCo Business, SpinCo Business Assets or SpinCo Entities in connection with, any SpinCo Proposal or any inquiry, proposal, effort or attempt related to or that would reasonably be expected to lead to, a SpinCo Proposal, (iii) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any SpinCo Proposal or (iv) approve or authorize, or cause or permit the Company or any of its Subsidiaries to enter into into, any agreement or deliver any agreement or instrument (including a confidentiality merger agreement, acquisition agreement, reorganization agreement, letter of intent, term sheetmemorandum of understanding, indication of interestagreement in principle, indicative proposal or other option agreement, joint venture agreement, partnership agreement or instrument) related to similar agreement or document relating to, or providing for, any Alternative Transaction SpinCo Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) 7.10 shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of limit the Company, its Subsidiaries, ’s ability to pursue or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended transaction relating to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support business of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding Subsidiaries, taken as a SPAC Alternative Transaction Proposalwhole (as opposed to solely the SpinCo Business), so long as such transaction would not prevent or materially impair or materially delay the Company’s ability to comply with its obligations hereunder and under the Separation and Distribution Agreement or to consummate the transactions contemplated hereby or by the Separation and Distribution Agreement.
Appears in 1 contract
Sources: Merger Agreement (3m Co)
Exclusivity. PXP may acquire additional Deepwater GOM Assets (aincluding equity interests of a company engaged in a Permitted Business), provided that, within thirty (30) During days after the Interim Periodclosing of such acquisition, PXP offers, by written notice, to sell such assets to the Company for an amount equal to the purchase price of such assets plus PXP’s reasonable transaction costs. The Company shall notify PXP as to whether it will acquire such additional Deepwater GOM Assets within thirty (30) days after receipt of a written offer from PXP. The Company shall take all action necessary or appropriate to seek the vote or consent to approve such offer by the holders of Preferred Stock and, prior to an Initial Public Offering, the holders of Common Shares, each voting separately as a class (except that the holders of Common Shares shall vote together as a single class), and in connection therewith shall provide all such holders with all material information relating to such offer and such assets. PXP agrees, and agrees to cause its Affiliates, to vote or consent all of their respective Common Shares (if such vote or consent is sought prior to an Initial Public Offering and determined by the Company to be necessary) and Preferred Stock entitled to vote or consent to approve such offer in the same proportion as the holders of the Preferred Stock other than PXP or its Affiliates, voting separately as a class, not later than three (3) days after the vote or consent thereon by the holders of the Preferred Stock other than PXP or its Affiliates. The Company shall accept such offer if (and only if) it has obtained: (i) prior to an Initial Public Offering, the Majority Preferred Approval (without any further requirement of approval by the Board of Directors); and (ii) after an Initial Public Offering, the approval of the Board of Directors. If the Company agrees to acquire additional Deepwater GOM Assets prior to an Initial Public Offering under this Section 2.02(c), then each of the holders of Common Stock, Class A Common Stock and Class B Common Stock (the “Common Stockholders”) and Preferred Stockholders shall contribute their proportionate share (determined on an as-converted basis) of any capital necessary to fund such acquisition through the purchase from the Company of additional shares of Class A Common Stock at a price of $20.00 per share; provided, however, that if any holder of Common Stock, Class A Common Stock or Class B Common Stock fails to purchase such additional shares of Class A Common Stock, then PXP shall acquire such additional shares of Class A Common Stock. If the foregoing applicable approval is obtained, then the Company shall not, (and PXP shall cause its Representatives the Company to) take all action necessary or appropriate to accept such offer within thirty (30) days after receipt of the written offer from PXP. Notwithstanding the foregoing, the restrictions and Subsidiaries requirements in this section shall not to, directly or indirectlyapply (1) from and after the tenth anniversary of the Closing Date, (i2) initiateto opportunities not accepted by the Company in writing within thirty (30) days after receipt of a written offer from PXP, solicit (3) from and after the time that PXP owns less than 50% of all the outstanding Common Stock on a Fully Diluted Basis, (4) to PXP’s investment in McMoRan Exploration Company or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase passive investments of shares or other Equity Securities PXP in which it holds not more than 10% of any outstanding class of capital stock (not involving board of directors representation) of a publicly held company that owns Deepwater GOM Assets, (5) to PXP’s acquisition of all of the Company stock or material portion of all the assets of any person that owns, among other things, Deepwater GOM Assets, as long as the Company and its Subsidiaries fair market value of such person’s Deepwater GOM Assets constitute less than 25% of the aggregate fair market value of the total assets being acquired by PXP pursuant to this clause (on a consolidated basis5) or any merger, business combination or other similar transaction of (6) to additional Deepwater GOM Assets acquired by PXP after the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead date hereof which are subject to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter area of intent, term sheet, indication of mutual interest, indicative proposal buy-back, preferential or other agreement or instrument) related similar pre-emptive right to any Alternative Transaction Proposalpurchase in favor of third parties under the terms of Applicable Contracts; provided that (xPXP shall offer to the Company pursuant to this Section 2.02(c) the executionany additional Deepwater GOM Assets for which such third parties have failed to exercise their area of mutual interest, delivery and performance of this Agreement buy-back, preferential or similar pre-emptive rights to purchase and the other Transaction Agreements time periods under this Section 2.02(c) shall be extended by the number of days such rights of third parties remain open. Within three days after any acquisition of Deepwater GOM Assets by PXP pursuant to clause (6) of the preceding sentence, PXP shall notify the Company (including the Preferred Nominee) and the consummation Investors of such acquisition and the Transactions time periods for the exercise of such third party rights; provided, however, that PXP shall not be deemed a violation required to notify the Investors if it is contractually prohibited from providing such notification (but only to the extent of such prohibition). Notwithstanding the foregoing, in the event PXP acquires leases that constitute Deepwater GOM Assets (“Deepwater Lease Assets”) and offers such Deepwater Lease Assets to the Company in accordance with the first sentence of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed 2.02(c), then to permit the extent the Company has available funds available under the Approved Budget for the purchase of Deepwater Lease Assets (or any up to an aggregate of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01$40 million). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted required to undertake the Permitted Equity Financing if purchase such assets from PXP (and only ifshall not be required to obtain Majority Preferred Approval for such purchase). The Company shall purchase such assets from PXP for an amount equal to the purchase price of such assets plus PXP’s reasonable transaction costs (without the requirement for the Common Stockholders, PXP or the Preferred Stockholders to contribute their proportionate share of the purchase price of such Deepwater Lease Assets). If the Company accepts an offer from PXP to purchase certain assets pursuant to this Section 2.02(c) (including Deepwater Lease Assets), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) then PXP and the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall will enter into an asset purchase agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein)with customary terms that are reasonably acceptable to each party; provided, which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactionshowever, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions it shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify reasonable for the Company if SPAC to refuse to execute an asset purchase agreement that contains identical or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail less burdensome terms than the terms and substance thereof, and SPAC shall, and shall cause its Representatives and by which PXP acquired the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalapplicable assets.
Appears in 1 contract
Sources: Shareholder Agreement (Freeport-McMoRan Oil & Gas Inc.)
Exclusivity. (a) During The Company agrees that between the Interim Perioddate of this Agreement and the earlier of the Closing and the termination of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their respective Affiliates and Representatives and Subsidiaries not to, directly or indirectly(a) solicit, (i) initiate, solicit knowingly encourage or accept any proposal or offer that constitutes an Acquisition Proposal or (b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or knowingly encourage (including by way of providing confidential the submission of, any proposal that constitutes, or non-public information) any inquiries, proposals or offers that constitute or may would reasonably be expected to lead to, an Acquisition Proposal. The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any purchase of shares or other Equity Securities of the Company foregoing, and, to the extent not done prior to the date of this Agreement, shall request all such Persons to promptly return or material portion of the assets of destroy all confidential information regarding the Company and its Subsidiaries (on a consolidated basis) or any mergerpreviously delivered thereto. The Company shall notify Parent promptly, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate but in any discussionsevent within 24 hours, negotiations or transactions with orally and in writing if any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Acquisition Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal inquiry or other agreement or instrument) related contact with any Person with respect thereto, is made. Such notice to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions Parent shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC indicate in reasonable detail the terms and substance thereofidentity of the Person making such Acquisition Proposal, and the Company shallinquiry or other contact and, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after extent the Company has determined to pursue Knowledge thereof, the Permitted Equity Financing terms and conditions of such Acquisition Proposal, inquiry or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the other contact. The Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor Subsidiaries not to, directly release any Person from, or indirectlywaive any provision of, (i) initiate, solicit any confidentiality or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead standstill agreement related to any business combination transaction between SPAC and potential or actual Acquisition Proposal to which the Company or any other Person of its Subsidiaries is a party, without the prior written consent of Parent. “Acquisition Proposal” means any offer or proposal for, or any indication of interest in, any of the following (other than the CompanyMerger and the other transactions contemplated hereby): (i) any direct or indirect acquisition or purchase, in one transaction or a series of transactions, of (a “SPAC Alternative Transaction Proposal”A) all or any portion of the capital stock of the Company or any of its Subsidiaries (other than pursuant to Options or AMACAI Options) or (B) assets of the Company or any of its Subsidiaries (other than inventory or other assets to be sold to customers in the ordinary course of business consistent with past practice), (ii) engage any merger, consolidation or participate in other business combination relating to or involving the Company or any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalof its Subsidiaries, or (iii) enter into any agreement recapitalization, reorganization or deliver any agreement other extraordinary business transaction involving or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related otherwise relating to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Exclusivity. (a) During Except as provided in Section 4.7(b), 4.7(c) or 6.1(f), from the Interim Perioddate of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall not, not and shall cause not authorize or permit its Representatives and Subsidiaries not toofficers, directors, employees, investment bankers, attorneys, accountants or other agents to directly or indirectly, indirectly (i) initiate, solicit or encourage knowingly encourage, or knowingly take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Company Acquisition Proposal, (including ii) enter into any agreement with respect to any Company Acquisition Proposal, or (iii) engage in negotiations or discussions with, or provide any information or data to, any person (other than Buyer) relating to any Company Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to obtaining the Requisite Stockholder Approval, Company may (i) furnish information concerning its business, properties or assets to any person pursuant to a confidentiality agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement and (ii) negotiate and participate in discussions and negotiations with such person concerning a Company Acquisition Proposal if the Company Board of Directors determines in good faith by way resolution duly adopted, after consultation with outside legal counsel and a financial advisor of providing confidential nationally recognized reputation, that such Company Acquisition Proposal constitutes or non-public informationwould reasonably be expected to lead to a Company Superior Proposal, but only if such Company Acquisition Proposal did not result from a breach of Section 4.7(a).
(c) The Company shall promptly (and in any case within 48 hours) (i) notify Buyer of any Company Superior Proposal, which notice shall include a copy of such Company Superior Proposal, (ii) notify Buyer upon receipt of any inquiries, proposals or offers received by, any request for information from, or any discussions or negotiations sought to be initiated or continued with, Company or its representatives concerning a Company Acquisition Proposal or that constitute or may could reasonably be expected to lead to any purchase of shares or other Equity Securities a Company Acquisition Proposal and disclose the identity of the Company other party and the material terms of such inquiry, offer, proposal or material portion request and, in the case of the assets written materials, provide copies of the Company such materials and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter provide Buyer with copies of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related all written materials provided by Company to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01)such party. The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably keep Buyer informed on a reasonably prompt and timely basis (and, in any case, within 48 hours of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such termssignificant development) of the Permitted Equity Financing status and details (including amendments and proposed amendments) of any such Company Superior Proposal or potential Permitted Equity Financingother inquiry, and (z) consults with SPAC in respect of the Permitted Equity Financing offer, proposal or potential Permitted Equity Financingrequest. Company shall promptly, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of following a determination by the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain Board of Directors that a customary voting provision in which such Person agrees to vote (whether at Company Acquisition Proposal is a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Superior Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter notify Buyer of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalsuch determination.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gerdau Ameristeel Corp)
Exclusivity. (a) During Between the Interim Perioddate of this Agreement and the earlier of the Closing and the termination of this Agreement in accordance with Article VII, the Company Parent shall not, and shall cause its Subsidiaries and Representatives and Subsidiaries not to, directly or indirectly, indirectly take any action to (i) solicit, initiate, solicit knowingly facilitate or knowingly encourage any Acquisition Proposal, (including by way ii) enter into, continue or otherwise engage in discussions or negotiations with any third party with respect to any Acquisition Proposal, (iii) provide information to any third party in connection with an Acquisition Proposal or (iv) enter into any agreement in principle, letter of providing intent, memorandum of understanding, merger agreement or any other business combination agreement with respect to any Acquisition Proposal.
(b) Parent shall promptly, and in any event within one (1) Business Day of the date of this Agreement:
(i) terminate access of any third party to any data room (virtual or actual) containing any confidential information with respect to the Business;
(ii) cease and cause to be terminated, and shall cause its Subsidiaries and Representatives to cease and cause to be terminated, all existing activities, discussions, negotiations and communications, if any, (x) with any third party with respect to, or non-public information) any inquiries, proposals or offers that constitute or may which would reasonably be expected to lead to to, any purchase of shares Acquisition Proposal or other Equity Securities (y) in connection with a potential initial public offering of the Company Business; and
(iii) request the return or material portion destruction of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with confidential information provided to any third party regarding in connection with an Acquisition Proposal (subject in each case to the terms of any Alternative Transaction Proposal or applicable confidentiality agreement).
(c) Promptly upon receipt of an unsolicited Acquisition Proposal, Parent shall notify Buyer, which notice shall include a written summary of the material terms of such proposal and the identity of the party that submitted such proposal. Parent may reasonably be expected to lead respond to any such Alternative Transaction Proposal, or (iii) enter unsolicited Acquisition Proposal only by indicating that Parent has entered into a binding definitive agreement with respect to the Acquisition and is unable to provide any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) information related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (Parent or any of its Subsidiaries) to take Subsidiaries or entertain any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, discussions or negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended respect to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) During The Company and IFL agree that, until such time as this Letter Agreement has terminated in accordance with the Interim Periodprovisions of paragraph 11 hereof, the Company neither they nor any of their representatives, officers, directors, agents, equityholders or affiliates shall notinitiate, and shall cause its Representatives and Subsidiaries not tosolicit, entertain, negotiate, accept or discuss, directly or indirectly, any proposal or offer, including any existing offer or proposal (i) initiatean “Acquisition Proposal”), solicit to acquire all or encourage (including by way any significant part of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities the business and properties of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any IFL, whether by merger, business combination purchase of units purchase of assets or other similar transaction of the Company otherwise, or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in provide any discussions, negotiations or transactions with non-public information to any third party regarding any Alternative Transaction in connection with an Acquisition Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement agreement, arrangement or deliver understanding requiring them to abandon, terminate or fail to consummate the Acquisition. The Company and IFL represent that neither they nor any of their equityholders or affiliates is party to or bound by any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or with respect to an Acquisition Proposal other agreement or instrument) related than under this Letter Agreement. IFL agrees to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (immediately notify Paligent if IFL or any of its Subsidiaries) to take representatives, directors, officers or agents receive any action that is otherwise prohibited or restricted by the terms indications of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company interest or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Acquisition Proposal, and will promptly communicate to SPAC Paligent in reasonable detail the terms and substance thereof, and conditions of any such indication or Acquisition Proposal as well as the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any identity of the person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction entity making such indication or Acquisition Proposal. During the Interim PeriodFurthermore, the Company will not confidentially submit to or file IFL agrees that, until such time as this Letter Agreement has terminated in accordance with the SEC provisions of paragraph 11 hereof, neither it nor any Registration Statement on Form S-1 of its representatives, officers, directors, agents or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company affiliates shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit solicit, entertain, negotiate, accept or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not todiscuss, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement offer to raise capital for IFL through the issuance of debt securities, capitalized leases, preferred or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC common interests or units or any similar instruments except in connection with the Acquisition or with the express written consent of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction ProposalPaligent.
Appears in 1 contract
Sources: Acquisition Agreement (Paligent Inc)
Exclusivity. (a) During From and after the Interim PeriodAgreement Date until the Effective Time or termination of this Agreement pursuant to Article 8, the Company shall will not, and shall cause nor will it authorize or permit any of its Representatives and Subsidiaries not officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by it to, directly or indirectly, (i) initiatesolicit, solicit initiate or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of providing confidential ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information) information with respect to, or take any inquiries, proposals other action to facilitate any inquiries or offers the making of any proposal that constitute constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any purchase Acquisition Proposal, except as to disclose the existence of shares these provisions, (iv) endorse or other Equity Securities recommend any Acquisition Proposal, or (v) enter into any letter of the Company intent or material portion of the assets of the similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal. The Company and its Subsidiaries (on a consolidated basis) will, and will cause their respective officers, directors, affiliates, employees, investment bankers, attorneys and other advisors and representatives to, immediately cease any and all existing activities, discussions or negotiations with any mergerparties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, business combination or other similar transaction it is understood that any violation of the Company restrictions set forth in the preceding two sentences by an officer or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter director of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives Subsidiaries or Subsidiaries receive any offer investment banker, attorney or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form professional advisor of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which or any of its Subsidiaries shall also contain be deemed to be a customary voting provision in which such Person agrees to vote (whether at a meeting or breach of this Section 6.6 by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction ProposalsCompany.
(b) During In addition to the Interim Periodobligations of the Company set forth in Section 6.6(a), SPAC the Company as promptly as practicable shall notadvise Parent in writing of any Acquisition Proposal or of any request for nonpublic information or other inquiry which the Company reasonably believes could lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (to the extent known), and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation identity of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group making any such request, inquiry or Acquisition Proposal. The Company agrees to keep Parent informed on a current basis of persons the status and details (other than the Company and its Representativesincluding any material amendments or proposed amendments) regarding a SPAC Alternative Transaction of any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
Exclusivity. The Managing Member, itself and on behalf of the Company, hereby agrees that Section 12.4 of the LLC Agreement shall not apply to any of your Affiliates (aother than your Subsidiaries) During from which you are separated by a reasonable and customary information barrier and the Interim Periodvoting and investment powers of which are exercised independently from you with respect to the Investment. (b) Notwithstanding Section 12.4 of the LLC Agreement, but subject to any applicable restrictions under the Company Restructuring Proposal, you and your Subsidiaries shall notbe permitted to invest in voting common shares of GGP following the effective date of the Plan; provided that your holdings of such common shares, and together with any holdings of your Subsidiaries (including any indirect purchase or disposition, for example, by means of swaps or other derivatives), shall cause its Representatives and Subsidiaries not toexceed three percent (3%) of the aggregate outstanding amount of such common shares; provided, directly or indirectlyfurther, that you agree (i) initiatenot to purchase or dispose of any such common shares if, solicit at the time of such purchase or encourage (including by way disposition, the Person making the applicable investment decision is in possession of providing confidential or any material non-public informationinformation relating to GGP on which it is prohibited from trading under the Exchange Act; (ii) not to purchase or dispose of any inquiries, proposals such common shares unless you have determined that such purchase or offers that constitute or may reasonably be expected to lead disposition would not result in a disgorgement of profits under Section 16(b) of the Exchange Act with respect to any Member other than you or your Affiliates; (iii) to notify the Managing Member of such purchase or disposition (including any indirect purchase or disposition, for example, by means of shares swaps or other Equity Securities derivatives), as applicable, and the amount and timing thereof, immediately after such purchase or disposition, and in any event on the date thereof; (iv) not to sell “short” any such common shares, unless you shall have determined that such “short” sale is permitted under Section 16(c) of the Exchange Act; (v) to reimburse the Company for any expenses incurred by the Company or the Managing Member on behalf of the Company, in connection with any amendment to any filings made on behalf of the Company or material portion pursuant to Section 13 of the assets Exchange Act; (vi) not to engage in any acquisition that would require compliance with Regulation 14E of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions Exchange Act with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected respect to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (GGP or any of its SubsidiariesAffiliates; and (vii) to take vote any action that is otherwise prohibited common shares held by you and your Affiliates at all times in the same manner and in conformance with how the Company votes its common shares in GGP. References in this paragraph 23 to any purchase or restricted disposition of common shares of GGP shall be to the purchase or disposition on a date or within a time period specified by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsrelevant party.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Stable Letter Agreement
Exclusivity. (a) During the Interim Period, each of Holdings and the Company shall notnot take, and nor shall cause it permit any of its Affiliates or Representatives and Subsidiaries not toto take, whether directly or indirectly, (i) initiateany action to solicit, solicit initiate or encourage (including by way of providing confidential engage in discussions or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposalwith, or (iii) enter into any agreement with, or deliver encourage, or provide information to, any agreement Person (other than Acquiror or instrument (including a confidentiality agreement, letter any of intent, term sheet, indication its Affiliates or Representatives) concerning any purchase of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation Company’s or any of this Section 8.03(a) its Subsidiaries’ equity securities or the issuance and (y) nothing in this Section 8.03(a) shall be construed to permit sale of any securities of, or limited liability company interests in, the Company or any of its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or any of its Subsidiaries) to take or any action that is otherwise prohibited merger or restricted by the terms sale of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if substantial assets involving the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, other than immaterial assets or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially assets sold in the form ordinary course of the Company Shareholder Lock-Up and Support Agreement business (each such acquisition transaction, but excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a an “SPAC Alternative Transaction ProposalAcquisition Transaction”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b10.03(a). SPAC agrees to promptly notify the The Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Affiliates and Representatives and the Sponsor to, immediately cease any and all existing discussions or negotiations or discussions with any person Person conducted prior to the date hereof with respect to, or group which is reasonably likely to give rise to or result in, an Acquisition Transaction. The Company and Holdings shall notify Acquiror promptly (but in no event later than forty-eight (48) hours) after receipt by the Company, Holdings, any of persons their respective Subsidiaries or any of their respective Representatives of any inquiry or proposal with respect to an Acquisition Transaction. In such notice, Holdings or the Company shall identify the third party making any such inquiry, proposal, indication or request with respect to an Acquisition Transaction and provide the details of the material terms and conditions of any such inquiry, proposal, indication or request. Notwithstanding the foregoing, nothing in this Section 10.03(a) shall require Holdings, the Company or any of their respective Subsidiaries to violate any Law or any obligation of confidentiality or non-disclosure owed by such party prior to the date of this Agreement.
(b) During the Interim Period, Acquiror shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its members or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Company, its members and their respective Affiliates and Representatives; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 10.03(b). Acquiror shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal. Acquiror shall notify the Company promptly (but in no event later than forty-eight (48) hours) after receipt by Acquiror or any of its Representatives of any inquiry or proposal with respect to a Business Combination Proposal. In such notice, Acquiror shall identify the third party making any such inquiry, proposal, indication or request with respect to a Business Combination Proposal and its Representativesprovide the details of the material terms and conditions of any such inquiry, proposal, indication or request. Notwithstanding the foregoing, nothing in this Section 10.03(b) regarding a SPAC Alternative Transaction Proposalshall require Acquiror to violate any Law or any obligation of confidentiality or non-disclosure owed by such party prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (GigCapital4, Inc.)
Exclusivity. (a) During From and after the Interim Perioddate of this Agreement until the Effective Time or termination of this Agreement pursuant to Article 8, the Company shall will not, and shall cause nor will it authorize or permit any of its Representatives and Subsidiaries not officers, directors, Affiliates or employees or any investment banker, attorney or other advisor or representative retained by it to, directly or indirectly, (i) initiatesolicit, solicit initiate or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of providing confidential ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information) information with respect to, or take any inquiries, proposals other action to facilitate any inquiries or offers the making of any proposal that constitute constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any purchase Acquisition Proposal, except as to disclose the existence of shares these provisions, (iv) endorse or other Equity Securities of recommend any Acquisition Proposal, provided that, notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prevent the Company or material portion of the assets of the Company and its Subsidiaries (on Board from recommending a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Superior Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iiiv) enter into any letter of intent or similar document or any contract, agreement or deliver any agreement commitment contemplating or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related otherwise relating to any Alternative Transaction Superior Proposal; provided provided, however, that (x) prior to the execution, delivery and performance adoption of this Agreement and by the other Transaction Agreements and the consummation of the Transactions required Company Stockholder vote, this Section 6.5(a) shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit prohibit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if from furnishing non-public information regarding the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations entering into a confidentiality agreement with or entering into discussions with with, any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, in response to a Superior Proposal or any offer or proposal that the Company will Board reasonably determines in good faith is reasonably likely to lead to a Superior Proposal submitted by such person or group (and not confidentially submit to withdrawn) or file with the SEC Company Board from recommending that the Company Stockholders approve a Superior Proposal if (1) neither the Company nor any Registration Statement on Form S-1 or F-1. Notwithstanding anything representative of the Company shall have violated any of the restrictions set forth in this Section 8.03(a6.5, including obligations under clause (i) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financingabove, (2) the Company Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Company Board to comply with its fiduciary obligations to the Company Stockholders under Delaware Law, (x3) notifies SPAC promptly prior to furnishing any such non-public information to, or entering into discussions with, such person or group, the Company gives Parent written notice of the identity of such person or group and of the Company’s intention to furnish non-public information to, or enter into discussions with, such person or group and the Company receives from such person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such person or group by or on behalf of the Company and (4) contemporaneously with furnishing any such non-public information to such person or group, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously furnished by the Company to Parent); provided, further, that the Company shall not consummate any transaction(s) contemplated by any Superior Proposal unless and in any event within twenty-four (24) hours) after until the Company has determined first terminated this Agreement pursuant to pursue Section 8.1(g) hereof. The Company will, and will cause its officers, directors, affiliates, employees, investment bankers, attorneys and other advisors and representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the Permitted Equity Financing or potential Permitted Equity Financingforegoing, (y) keeps SPAC reasonably informed on a prompt and timely basis it is understood that any violation of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially restrictions set forth in the form preceding two sentences by any officer, director or employee of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein)or any investment banker, which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting attorney or by written consent) all other advisor or representative of the Equity Securities owned Company shall be deemed to be a breach of this Section 6.5 by such Person in favor and support of the Transactions, including the Company Transaction ProposalsCompany.
(b) During In addition to the Interim Periodobligations of the Company set forth in Section 6.5(a), SPAC the Company as promptly as practicable shall not, and shall cause its Representatives and the Sponsor not to, directly advise Parent in writing of any Acquisition Proposal or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or any request for non-public information) any inquiries, proposals information or offers that constitute or may other inquiry which the Company reasonably be expected to believes could lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction an Acquisition Proposal, or the material terms and conditions of such Acquisition Proposal (iiito the extent known) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation identity of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group making any such request, inquiry or Acquisition Proposal. The Company agrees to keep Parent informed on a current basis of persons the status and details (other than the Company and its Representativesincluding any material amendments or proposed amendments) regarding a SPAC Alternative Transaction of any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (OccuLogix, Inc.)
Exclusivity. (a) During the Interim PeriodExclusivity Period (as defined below), the Company shall notneither CDI nor any of its subsidiaries nor any of their respective officers, and shall cause directors, employees or representatives (including any investment banker, attorney or accountant retained by CDI or any of its Representatives and Subsidiaries not tosubsidiaries) will, directly or indirectly, (iI) engage in any discussions or negotiations concerning the sale or other disposition of all or a substantial portion of the Company, whether by sale or disposition of securities, merger, sale of assets or otherwise, other than the Potential Acquisition with AE (any such sale or disposition, an “Acquisition Proposal”), or otherwise initiate, solicit or encourage knowingly encourage, assist or facilitate any effort relating to an Acquisition Proposal or any inquiry, proposal or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal, or (II) engage in any discussions with, or furnish any information concerning CDI or any of its subsidiaries to, any third party who has made, or in response to, an Acquisition Proposal or any inquiry, proposal or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this letter agreement, if at any time after the date hereof and prior to the consummation of a Potential Acquisition, CDI receives an unsolicited written Acquisition Proposal (which Acquisition Proposal was made after the date of this letter agreement and did not results from a material breach of this letter agreement), CDI and its representatives may, subject to compliance with this paragraph and prior written notice to AE at ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, engage in negotiations or discussions with, or furnish information and reasonable access to, the third party (including by way of providing confidential such third party’s representatives) making such Acquisition Proposal if CDI determines in good faith, after consultation with its outside legal counsel and financial advisor, and based on information then available, that such Acquisition Proposal constitutes or non-public information) any inquiries, proposals or offers that constitute or may could reasonably be expected to lead to any purchase or result in a proposal that is more favorable to the stockholders of shares CDI than the Potential Acquisition.
(c) Notwithstanding anything to the contrary contained in this letter agreement, CDI may, following the receipt of an Acquisition Proposal and with prior written notice to AE at ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, contact the third party (including such third party’s representatives) making such Acquisition Proposal to (i) clarify and understand the terms and conditions thereof to facilitate CDI’s determination with respect to the foregoing paragraph or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any inform such third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance provisions of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposalsletter agreement.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Exclusivity Agreement (Cdi Corp)
Exclusivity. (a) During Seller agrees that during the Interim Periodperiod between the date hereof and the earlier of the Closing and the valid termination of this Agreement pursuant to its terms, the Company it shall not, and shall cause its Representatives Subsidiaries, Affiliates, officers, directors, employees and Subsidiaries other representatives not to, directly or indirectly, (i) solicit, initiate, solicit or propose, knowingly encourage (including by way of providing confidential furnishing information for the purposes of an Acquisition Proposal) or non-public information) accept any inquiriesinquiry, proposals proposal or offers offer that constitute constitutes or may would reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (be an “Alternative Transaction Acquisition Proposal”), (ii) engage or participate in any discussions, negotiations or transactions other communications with any third party potential acquiror or its officers, directors, employees or other representatives regarding any Alternative Transaction Proposal inquiry, proposal or offer that may constitutes or would reasonably be expected to lead be an Acquisition Proposal (except to notify a Person that makes any such Alternative Transaction Proposalinquiry, offer or proposal of the existence of the provisions of this Section 6.25), (iii) provide any material non-public information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to be an Acquisition Proposal or (iv) authorize, recommend, propose or enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, term sheet, letter of intent, term sheet, indication of interest, indicative proposal purchase agreement or other agreement regarding an Acquisition Proposal, in each case other than involving only Purchaser or instrument) related to any Alternative Transaction Proposal; provided of its Affiliates. Seller agrees that (x) the executionit shall be responsible for any action or omission by any of its Subsidiaries, delivery and performance of this Agreement and the Affiliates, officers, directors, employees, or other Transaction Agreements and the consummation of the Transactions shall not be deemed a representatives acting on its behalf in violation of this Section 8.03(a) and (y) nothing 6.25. Seller shall notify Purchaser reasonably promptly, in this Section 8.03(a) writing, of any Acquisition Proposal. Any such notice to Purchaser shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC indicate in reasonable detail the identity of the Person making such Acquisition Proposal and the key terms and substance conditions thereof. Without the prior written consent of Purchaser, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC Seller shall not, and shall cause its Representatives and the Sponsor not permit their Subsidiaries or Affiliates to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) release any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposalfrom, or (iii) enter into waive any provision of, any confidentiality or standstill agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation in respect of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees Business to promptly notify the Company if SPAC which Seller or any of its Representatives Subsidiaries or the Sponsor receive any offer or communication in respect of Affiliates is a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposalparty.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. (a) During the Interim Period, the Company shall not, and shall cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any purchase of shares or other Equity Securities of the Company or material portion of the assets of the Company and its Subsidiaries (on a consolidated basis) or any merger, business combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its Representatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Alpha Star Acquisition Corp)