Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 4 contracts
Samples: Business Combination Agreement (Brookline Capital Acquisition Corp.), Project Barolo Merger (Apexigen, Inc.), Business Combination Agreement (Brookline Capital Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause the Company Subsidiaries and shall use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise cooperate in any way regarding a Company Acquisition Proposal (an “Alternative Transaction”as defined herein), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Company Acquisition Proposal or (C) commence, continue or renew any due diligence investigation regarding any Alternative TransactionCompany Acquisition Proposal; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)7.4. The Company shall, and shall direct cause the Company Subsidiaries and shall use reasonable best efforts to cause its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative TransactionCompany Acquisition Proposal. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the a Company Acquisition Proposal to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the ClosingFor purposes hereof, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.“
Appears in 3 contracts
Samples: Business Combination Agreement (Nabors Energy Transition Corp.), Business Combination Agreement (Nabors Energy Transition Corp.), Business Combination Agreement (Vast Solar Pty LTD)
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) until the Closing and (ii) the or termination of this AgreementAgreement pursuant to Section 8, the Acquired Company shall will not, and shall direct nor will it authorize or permit any of its Representatives not officers, directors, Affiliates or employees or any investment banker, attorney or other advisor or representative retained by it to, directly or indirectly, (Ai) solicit, negotiate withinitiate or induce the making, provide submission or announcement of any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or cooperate in take any way other action to facilitate any inquiries or the making of any proposal that would otherwise constitutes or may reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to disclose the existence of these provisions, (iv) endorse or recommend any Acquisition Proposal, or (Cv) commenceenter into any letter of intent or similar document or any contract, continue agreement or renew commitment contemplating or otherwise relating to any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement Acquisition Proposal. The Seller Parties and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallAcquired Company’s subsidiaries will, and shall direct its Representatives 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 person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth in this Section 7.05(a) the preceding sentence by any officer, director or employee of the Acquired Company or any of its Representatives subsidiaries or any investment banker, attorney or other advisor or representative of the Acquired Company or any of its subsidiaries shall be deemed to be a breach of this Section 7.05(a) 5.3 by the Acquired Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 3 contracts
Samples: Option Purchase Agreement (Nuvasive Inc), Option Purchase Agreement (Nuvasive Inc), Option Purchase Agreement (Nuvasive Inc)
Exclusivity. (a) From the date of Except with respect to this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementtransactions contemplated hereby, the Company Company, the Stockholders and any of their affiliates shall not, and each of them shall direct cause its Representatives respective employees, agents and representatives (including, without limitation, any investment banking, legal or accounting firm retained by it or them and any individual member or employee of the foregoing) (each, an "Agent") not to, (a) initiate, solicit or seek, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (A) solicitincluding, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encouragewithout limitation, any proposal or offer to its shareholders or any of them) with respect to a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase of all or any portion of the assets or any equity securities of, the Company (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or (b) engage in any negotiations concerning, or provide any confidential information or data to, or have any substantive discussions with, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bc) otherwise cooperate in any effort or attempt to make, implement or accept an Acquisition Proposal, or (d) enter into or consummate any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations understanding with any person conducted heretofore with respect or entity relating to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than an Acquisition Proposal, except for the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofMerger contemplated hereby. If the Company or any Stockholder, or any of its Representatives receives their respective Agents, have provided any inquiry person or proposal entity (other than UniCapital) with respect any confidential information or data relating to an Alternative Transaction at any time prior to the ClosingAcquisition Proposal, then they shall request the immediate return thereof. The Company and the Stockholders shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry notify UniCapital immediately if any inquiries, proposals or proposal) notify such person in writing that the Company is subject offers related to an exclusivity agreement with respect Acquisition Proposal are received by, any confidential information or data is requested from, or any negotiations or discussions related to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed an Acquisition Proposal are sought to be a breach initiated or continued with, it or any individual or entity referred to in the first sentence of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.058.10.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Unicapital Corp), Agreement and Plan of Reorganization (Unicapital Corp), Agreement and Plan of Reorganization (Unicapital Corp)
Exclusivity. (a) From the date of this Agreement The Company and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company its Affiliates shall not, and shall direct its cause the Company Subsidiaries and their respective Representatives not to, directly or indirectly, (Aa) (i) solicit, negotiate with(ii) initiate, provide any nonpublic information regarding the Company’s business(iii) knowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, (iv) respond to the submission of any proposal ofor offer from any third-party relating, with respect to the Company or any person of the Company Subsidiaries, to any (other than BCAC and its affiliatesw) relating to a potential liquidation, dissolution or recapitalization, (x) merger or consolidation, (y) acquisition or purchase of all or substantially all a significant portion of the assets of, or any equity interests interest in, the Company or assets any of the Company, whether by merger, sale of stock, sale of assets, Company Subsidiaries or (z) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), nor (Bb) enter into any agreement regarding, continue or otherwise participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person other third-party any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or nor (Cc) commenceenter into any agreement with respect to a Competing Transaction, continue or renew any due diligence investigation regarding any Alternative Transaction; providedexcept, that in the executioncases of clauses (a)(iv) (and clause (a)(iii) to the extent an action described in clause (a)(iv) would also constitute an action described in clause (a)(iii)) and (b), delivery and performance of this Agreement and to the Transaction Documents and extent failure to do so would be inconsistent with the consummation fiduciary duties of the Transactions board of directors of the Company under applicable Law. Any information described in the foregoing clause shall not only be deemed provided pursuant to a violation of this Section 7.05(a)confidentiality agreement with confidentiality provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement. The Company shall, and shall direct instruct all Representatives acting on its Representatives to, and its Affiliates’ behalf to immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing. The As soon as reasonably practicable after the date hereof, the Company also agrees that it will promptly request shall instruct each person Person (other than Parent and the parties hereto Merger Subs and their respective Representativesrepresentatives) in possession of confidential information about the Company that has prior was furnished pursuant to the date hereof executed a confidentiality agreement within the prior twelve (12) months in connection with its, his any actual or her consideration of acquiring potential proposal by such Person to acquire the Company (or any portion thereof) to promptly return or destroy all Confidential Information furnished to such person by or on behalf of itinformation, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such confidentiality agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Information Services, Inc.), Agreement and Plan of Merger (Sungard Capital Corp Ii)
Exclusivity. Prior to the Closing Date the Company will refrain, and cause its Affiliates, officers, directors, employees, agents and other representatives (aincluding without limitation any brokers, legal counsel, accountants, or financial advisors of the Company) From the date of this Agreement and ending on the earlier of to refrain, from directly or indirectly (x) making any offer or proposal to any Person or entering into any contract with any Person to (i) sell, issue or otherwise transfer any capital stock of the Closing Company (other than pursuant to equity plans of the Company in effect on the date hereof (without giving effect to any amendment thereof after the date hereof)) (the "Existing Equity Plans") to officers, directors and employees of the Company and its Subsidiaries); or (ii) sell or otherwise transfer any material assets or properties of the termination Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; (y) entertaining, soliciting, encouraging, accepting, negotiating or otherwise holding substantive discussions (and shall immediately cease any such actions currently underway with any Persons other than the Purchasers) regarding any offer or proposal from any Person to (i) purchase or otherwise acquire any of the capital stock of the Company; or (ii) sell or otherwise transfer any material assets or properties of the Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; or (z) providing any non-public information regarding the Company to any Person in connection with a transaction of the type described in subsections (i), (ii) and (iii) above; provided that notwithstanding anything to the contrary in this AgreementSection 6.6, the Company shall notmay consider, negotiate, approve and shall direct its Representatives not torecommend to the Shareholders of the Company any unsolicited offers or proposals for an acquisition, directly by merger, amalgamation consolidation, tender offer or indirectlyotherwise, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests assets or assets outstanding Common Shares of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Company (an “Alternative Transaction”"Unsolicited Proposal"), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, further, that unless this Agreement is terminated pursuant to Section 9.1, no such actions shall affect the execution, delivery and performance obligations of the Company under this Agreement (including without limitation the obligation of the Board of Directors of the Company to recommend to the shareholders of the Company the consummation of the transactions contemplated by this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aother Operative Documents). The Company shallFurther, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsany Unsolicited Proposal, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Affiliate thereof, may enter into a confidentiality agreement with, and provide any inquiry non-public information regarding the Company to, any Person in connection with any such Unsolicited Proposal. If any such offer or proposal with respect is made to an Alternative Transaction at or received from any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityPerson, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction will promptly advise such Person by written notice of the terms of this Section 7.056.6 and will promptly deliver a copy of such notice to the Purchasers.
Appears in 2 contracts
Samples: Share Purchase Agreement (Pxre Group LTD), Share Purchase Agreement (Pxre Group LTD)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to Article 8 and the Closing Date, the Company Seller shall not, and shall direct its Representatives not to, directly or indirectlyindirectly (including indirectly through its Representatives), (Aa) solicit, negotiate withinitiate, provide knowingly encourage or induce or take any nonpublic information regarding the Company’s business, or enter into any Contract with, or other action to in any manner way knowingly encourage, facilitate any inquiries or the making of any proposal of, any person that constitutes or would reasonably be expected to lead to (other than BCAC and its affiliatesincluding by way of furnishing information or assistance) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (Bb) enter into any agreement regarding, continue engage in or otherwise participate in any negotiations or discussions regardingwith any Person (other than any Governmental Authority) concerning, or furnish to any person provide any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead with, any Person relating to, any Alternative Competing Transaction or (Cc) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives agree to, approve or recommend any contract (written or oral), agreement in principle, letter of intent, term sheet or other similar instrument relating to any Competing Transaction. Seller shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person of the foregoing (other than any such discussions with any Governmental Authority) and shall use its Commercially Reasonable Efforts to cause any such party in possession of confidential information about Seller that was furnished by or on behalf of Seller in connection with the parties hereto and their respective Representatives) that has sale process conducted by Seller prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring respect to the Company Purchased Assets to return or destroy all Confidential Information furnished such information. Seller acknowledges and agrees that any remedy at law for breach of the foregoing covenant may be inadequate and, in addition to such person by any other relief which may be available, Purchaser shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving actual damages, posting bond or on behalf providing surety, and without regard to the adequacy of itany remedy at Law. Seller represents and warrants that, him or her prior to as of the date hereof. If the Company , (x) it is not engaged in discussions or negotiations with any party other than Purchaser or any of its Representatives receives any inquiry or proposal Governmental Authority with respect to an Alternative Transaction at any time prior to of the Closingforegoing, then the Company shall promptly (and in y) there is no event later than one stand-by or back-up contract (1) Business Day after the Company become aware of such inquiry written or proposal) notify such person in writing that the Company is subject to an exclusivity oral), agreement or other understanding with respect to the sale of the Company that prohibits it from considering such inquiry or proposalPurchased Assets, and will provide BCAC (z) it has terminated all discussions with a copy of third parties (other than any Governmental Authorities) with respect to such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05proposed matters.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and and/or (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or Exchange Act, concerning (1) any sale of assets of the Company, whether by (2) the issuance or acquisition of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities of the Company, or (3) any conversion, consolidation, merger, sale of stockliquidation, sale of assets, business combination dissolution or otherwise similar transaction (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Transaction, or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him him, or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC GigCapital5 with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 2 contracts
Samples: Business Combination Agreement (Qt Imaging Holdings, Inc.), Stockholder Support Agreement (GigCapital5, Inc.)
Exclusivity. (a) From and after the date of this Agreement and ending on hereof until the earlier of (ia) the Closing Date, and (iib) the termination of this AgreementAgreement pursuant to Article IX (the "Exclusivity Period"), the Company and any Affiliate, officer, director, agent, or representative of the Company shall not, and shall direct its Representatives not to, directly or indirectly, : (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bi) enter into any written or oral agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations understanding with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Purchasers and their respective Representatives) that has prior other Persons acceptable to the date hereof executed a confidentiality agreement in connection Purchasers Representative) regarding Another Transaction (as defined below); (ii) initiate or continue any negotiations or discussions with itsany person or entity (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding the possibility of Another Transaction; (iii) submit, his solicit, initiate, encourage, participate in, or her consideration of acquiring facilitate any proposal or offer regarding Another Transaction; or (iv) except as otherwise required by law, provide any non-public financial or other confidential or proprietary information regarding the transactions contemplated hereby to any Person (other than to the Purchasers and other Persons acceptable to the Purchasers Representative) whom the Company knows, or has reason to return believe, would have any interest in participating in Another Transaction. As used herein, "Another Transaction" means any issuance, sale, exchange, merger, combination, consolidation, recapitalization, or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or similar transaction involving any of its Representatives receives any inquiry the capital stock, equity interests, long-term debt arrangements, assets or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale business of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy (other than sales of any such written inquiry or proposal or a detailed summary inventory in the ordinary course of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalbusiness). Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives Another Transaction shall be deemed to include the sale of either the Company's Portland operations or the Company's Florida operations (a "Division Sale") even if one Person or group of related Persons does not purchase both operations. The Company shall notify the Purchasers Representative in writing immediately if after the date hereof any Person (other than the Purchasers and other Persons acceptable to the Purchasers Representative) makes any proposal, offer, inquiry or makes or has any contact in respect to Another Transaction or a Division Sale. The parties hereto acknowledge that the Purchasers would be irreparably injured by a breach of this Section 7.05(a) by 5.5 and agree that the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction Purchasers Representative on behalf of all or some of the terms Purchasers shall be entitled, in addition to any other rights or remedies the Purchasers may have under law or by agreement, to equitable relief, including injunctive relief, in the event of a breach of this Section 7.05.5.5. ARTICLE VI
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Williams Controls Inc), Preferred Stock Purchase Agreement (Williams Controls Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct cause its Representatives and Subsidiaries not to, directly or indirectly, (Ai) solicitinitiate, negotiate withsolicit or encourage (including by way of providing confidential or non-public information) any inquiries, provide proposals or offers that constitute or may reasonably be expected to lead to any nonpublic information regarding the Company’s business, purchase of shares or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all Equity Securities of the equity interests Company or material portion of the assets of the Company, whether by Company and its Subsidiaries (on a consolidated basis) or any merger, sale of stock, sale of assets, business combination or otherwise other similar transaction of the Company or its Subsidiaries (an “Alternative TransactionTransaction Proposal”), (Bii) 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 regardingor deliver any agreement or instrument (including a confidentiality agreement, continue letter of intent, term sheet, indication of interest, indicative proposal or otherwise participate in any discussions regarding, other agreement or furnish instrument) related to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Proposal; provided that (Cx) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(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 shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect agrees to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If notify SPAC if the Company or any of its Representatives receives or Subsidiaries receive any inquiry offer or proposal with communication in respect to of an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalProposal, and will provide BCAC 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 a copy any person or group of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the identity of the person making such inquiry or proposal. Without limiting the foregoingInterim Period, the parties agree that Company will not confidentially submit to or file with the SEC any violation of the restrictions Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 7.05(a8.03(a) by to the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For claritycontrary, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction 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 this Section 7.05the 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.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Silver Crest Acquisition Corp), Agreement and Plan of Merger (Silver Crest Acquisition Corp)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) Effective Date until the Closing and (ii) the termination of this AgreementDate, the Company Seller shall not, and shall direct cause its Subsidiaries and its and their respective Representatives not toand any other Person acting on its or their behalf to not, directly or indirectly, (Aa) solicit, negotiate withinitiate, encourage, enter into, conduct, engage in or continue, any discussions, negotiations or communications, or continue any discussions, negotiations communications, contract or understandings, whether written or oral or binding or non-binding, or provide any nonpublic information regarding or afford access to the Company’s businessproperties, books or enter into records of the Target Companies or relating to the Business to any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and Buyer or its affiliatesAffiliates or Representatives), in each case, concerning a sale (or possible sale) relating to a potential acquisition of all or substantially all any part of the equity interests Business, the Transferred Assets or assets of the CompanyTarget Companies, whether by such transaction takes the form of a sale of securities or other equity interests, merger, liquidation, dissolution, reorganization, recapitalization, consolidation, sale of stock, sale assets (including all or a material portion of assets, business combination the assets or any interest therein) or otherwise (an “Alternative Transaction”), (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect agree to, accept, approve, endorse or cooperate in recommend (or propose or announce any way that would otherwise reasonably be expected intention or desire to lead toagree to accept, approve, endorse or recommend) any Alternative Transaction or (Cc) commence, continue or renew any due diligence investigation regarding submit any Alternative Transaction; provided, that Transaction to the execution, delivery and performance vote of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)its stockholders. The Company Seller shall, and shall direct cause its Subsidiaries and its and their respective Representatives to, immediately cease discontinue any and all existing discussions ongoing communications or negotiations with any person conducted heretofore with respect relating to any Alternative Transaction. The Company also agrees that it will promptly request Transaction and instruct each person (other than participant in the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company sale process to return or destroy all Confidential Information furnished any confidential information of Seller and its Subsidiaries (and terminate access to any data room for each such person by other participant). Seller shall promptly notify Buyer in the event that it or on behalf of it, him its Subsidiaries or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry request for information, proposals, inquiries or proposal with respect other contact from any Person relating to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingPerson, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05any proposal and a reasonable summary of all communications).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Gogo Inc.), Purchase and Sale Agreement (Intelsat S.A.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) written or oral, any action to solicit, negotiate initiate, continue or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofrespond, provide information to or commence due diligence with respect to, any person Person (other than BCAC and Acquiror and/or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any purchase of all or substantially all of the equity interests or assets any of the Company, whether by merger, ’s equity securities or the issuance and sale of stockany securities of, or membership interests in, 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 recapitalization or similar business combination transaction or sale of assetssubstantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business combination or otherwise (each such acquisition transaction, but excluding the Transactions, an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding regarding, or that is reasonably likely to give rise to or result in, any Alternative offer, inquiry, proposal indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.04(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions discussions, conversations, negotiations or negotiations other communications with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsrespect to, his or her consideration of acquiring which is reasonably likely to give rise to or result in, an Acquisition Transaction, and request the Company to prompt return or destroy destruction of all Confidential Information furnished confidential information previously furnished, in each case with respect to such person by any of the foregoing. The Company represents and warrants to Acquiror that this Section 9.04(a) does not and will not conflict with or on behalf of itviolate any agreement, him understanding or her prior arrangement, whether written or oral, to the date hereof. If which the Company or (to the Company’s Knowledge) any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Affiliates are currently bound.
Appears in 2 contracts
Samples: Joinder Agreement (LMF Acquisition Opportunities Inc), Joinder Agreement (LMF Acquisition Opportunities Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementContract Period, the Company Seller shall not, and shall direct cause and instruct its Representatives Affiliates, directors, officers, employees and representatives not to, and shall not authorize or permit any of the foregoing to, directly or indirectly, (Ai) solicit, negotiate initiate, seek or knowingly encourage any inquiry, proposal or offer from, any Person (other than the Purchasers and their respective Affiliates with respect to the transactions contemplated by this Agreement, the Real Estate Purchase Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby) regarding any offer or inquiry from any Person relating to any direct or indirect merger, consolidation, reorganization or acquisition of the Business, the Acquired Companies (or equity interests therein) or all or any material portion of the Business (excluding, for the avoidance of doubt, any sale of Consumables by the Business) or all or any portion of the Integrated Resort or the fee and related interests of Sands Arena Landlord LLC and VCR with respect to the MSG Sphere at the Venetian or the Transferred Real Estate Assets, including any sale, lease, sale leaseback or mortgage of the Transferred Real Estate Assets (an “Offer”), (ii) furnish any information to, or participate in any negotiations or discussions with, provide any nonpublic information regarding the Company’s business, or enter into any agreement in principle, arrangement, understanding or Contract with, any Person with respect to any Offer, (iii) approve, endorse or in any manner knowingly encouragerecommend, or propose publicly to approve, endorse or recommend, any proposal ofOffer or (iv) otherwise resolve, propose or agree to do any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets foregoing. Seller agrees that any such discussions, negotiations and other communications in progress as of the Companydate of this Agreement shall immediately be terminated and shall request that any confidential information regarding the Business and held by any Person in connection with such discussions, whether by merger, sale of stock, sale of assets, business combination negotiations or otherwise (an “Alternative Transaction”), (B) other communications be promptly returned to Seller or destroyed. In no event shall Seller accept or enter into any agreement regarding, continue (including any confidentiality or otherwise participate non-disclosure agreement) concerning any such third-party transaction. Seller shall notify the Purchasers as promptly as reasonably practicable upon any Offer that is in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery writing and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed is a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry bona fide offer or proposal with respect to an Alternative Transaction at any time prior to acquire the ClosingBusiness, then the Company shall promptly (Integrated Resort, the fee and in no event later than one (1) Business Day after the Company become aware related interests of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Sands Arena Landlord LLC and VCR with respect to the sale MSG Sphere at the Venetian, any of the Company that prohibits it from considering such inquiry Acquired Assets or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquired Interests.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Las Vegas Sands Corp), Purchase and Sale Agreement (Vici Properties Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementExclusivity Period, the Company shall will not, and shall direct nor will it authorize or permit any of its Representatives not officers, directors, Affiliates or employees, or any investment banker, attorney or other advisor or representative retained by it to, directly or indirectly, indirectly (Ai) solicit, negotiate withinitiate or induce the making, provide submission or announcement of any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or cooperate in take any way other action to facilitate any inquiries or the making of any proposal that would otherwise constitutes, or may reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to disclose the existence of these provisions, (iv) endorse or recommend any Acquisition Proposal, or (Cv) commenceenter into any letter of intent or similar document or any contract, continue agreement or renew commitment contemplating or otherwise relating to any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Acquisition Proposal. The Company shalland its Subsidiaries will, and shall direct its Representatives 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 person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth in this Section 7.05(a) the preceding two sentences by any officer, director or employee of the Company or any of its Representatives Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries, which violation was known to the Company’s management and not ceased immediately thereafter, shall be deemed to be a breach of this Section 7.05(a) 6.4 by the Company. For clarityNotwithstanding any provision in this Section 6.4 to the contrary, the Company may inform shall be entitled to engage in discussions with potential investors who are not strategic investors regarding debt or equity funding, but the Company shall not consummate any person making an unsolicited proposal regarding an Alternative Transaction of such funding transaction until the terms of this Section 7.05Exclusivity Period has expired.
Appears in 2 contracts
Samples: Loan Agreement (Surgivision Inc), Loan Agreement (Mri Interventions, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Section 9.01, the Company shall not, and shall direct cause the Company Subsidiaries and its and their respective Representatives not to, directly or indirectly, (A) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage (including by way of furnishing non-public information) or respond to or facilitate any inquiries, offers or proposals (written or oral) by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests Exchange Act, concerning any direct or indirect sale or purchase, in a single transaction or a series of related transactions, of any assets of the CompanyCompany or any of the Company Subsidiaries or any shares, capital stock or other equity securities of the Company or any of the Company Subsidiaries, whether by way of merger, sale conversion, consolidation, purchase or issuance of stockequity securities, sale liquidation, dissolution, initial public offering, tender offer or other similar transaction involving the Company or any of assets, business combination or otherwise the Company Subsidiaries (an “Alternative Transaction”), other than with the other Parties and their respective Representatives, (B) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction, (C) enter into any contract or other arrangement or understanding regarding an Alternative Transaction, (D) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, I approve, endorse or recommend, or propose publicly to approve, endorse or recommend an Alternative Transaction, (E) prepare or take any steps in connection with a public offering of any Equity Interests of the Company or any of the Company Subsidiaries or (F) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of Equity Interests of the Company or any of the Company Subsidiaries; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a7.04(a). The Company shall, and shall direct cause the Company Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one three (13) Business Day Days after the Company become becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transactions that prohibits it such Party from considering such inquiry or proposalproposal and notify Parent of the receipt of an Alternative Transaction including a summary of the material terms and conditions of such Alternative Transaction, and unless the Company is bound by a previously executed confidentiality agreement that prohibits such disclosure (in which case, the Company will provide BCAC with use reasonable best efforts to seek a copy waiver of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalapplicable confidentiality restrictions). Without limiting the foregoing, the parties agree Company agrees that any violation of the restrictions set forth in this Section 7.05(a7.04(a) by it or any of the Company Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a7.04(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 2 contracts
Samples: Business Combination Agreement (Rosecliff Acquisition Corp I), Registration Rights Agreement (Rosecliff Acquisition Corp I)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Parent shall not, shall cause its Subsidiaries not to and shall direct use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (Ai) initiate, solicit, negotiate withpropose or knowingly induce the making, provide any nonpublic information regarding the Company’s businesssubmission or announcement of, or enter into any Contract with, or in any manner knowingly encourage, facilitate or assist, any proposal inquiries or requests for information with respect to, or the making of, any person (inquiry regarding, or any proposal or offer that constitutes, or could reasonably be expected to result in or lead to, any Business Combination other than BCAC and its affiliates) relating to the Transactions (a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative TransactionBusiness Combination Proposal”), (Bii) enter into any agreement regardingengage in, continue or otherwise participate in any negotiations or discussions regardingconcerning, or furnish provide access to its properties, business, assets, books, records or any confidential information or data to, any Person relating to any person any proposal, offer, inquiry or request for information with respect that constitutes, or could reasonably be expected to result in or lead to, any Business Combination Proposal, (iii) approve, endorse or cooperate recommend, or propose publicly to approve, endorse or recommend, any Business Combination Proposal, (iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any way Business Combination Proposal or (v) propose, resolve or agree to do, or do, any of the foregoing. Parent also agrees that, immediately following the execution of this Agreement, it and the Sponsor shall, and shall cause each of their respective Subsidiaries and its and their Representatives to, cease any solicitations, discussions or negotiations with any Person (other than the parties hereto and their respective Representatives) conducted heretofore in connection with a Business Combination Proposal or any inquiry or request for information that would otherwise could reasonably be expected to lead to, any Alternative Transaction or (C) commenceresult in, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Business Combination Proposal. The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Parent also agrees that it will promptly within five (5) Business Days of the execution of this Agreement, Parent shall request each person Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring a Business Combination Proposal (and with whom Xxxxxx has had contact in the Company twelve (12) months prior to the date of this Agreement regarding a Business Combination Proposal) to return or destroy all Confidential Information confidential information furnished to such person Person by or on behalf of it, him it or her any of its Subsidiaries prior to the date hereof. If hereof in accordance with the Company terms of the confidentiality agreement executed with such Person and terminate access to any physical or electronic data room maintained by or on behalf of Parent or any of its Subsidiaries. If a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction a Business Combination Proposal at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one two (12) Business Day Days after the Company become such party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy terms of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalthis Section 7.06. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth contained in this Section 7.05(a) 7.06 by the Company any of Parent’s Subsidiaries, or any of Parent’s or its Subsidiaries’ respective Representatives acting on Parent’s or one of its Subsidiaries’ behalf, shall be deemed to be a breach of this Section 7.05(a) 7.06 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Parent.
Appears in 2 contracts
Samples: Merger Agreement and Plan of Reorganization (Breeze Holdings Acquisition Corp.), Merger Agreement and Plan of Reorganization (Breeze Holdings Acquisition Corp.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on until the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, the Company Sellers shall not, and shall direct its Representatives not permit any of their Controlled Affiliates (including the Transferred Subsidiaries) or their respective officers, directors, employees, partners, members, managers, equityholders, agents, advisors or other representatives (“Representatives”) to, (a) directly or indirectly, (A) solicit, negotiate with, provide encourage or initiate any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any third party to lead todo or seek any of the foregoing, any Alternative Transaction or (Cc) commencefurnish any information regarding the Business to any third party (except the furnishing of information to customers, continue or renew any due diligence investigation regarding any Alternative Transaction; providedsuppliers, licensors, licensees, distributors and others that have a business relationship with the execution, delivery and performance Business in the Ordinary Course of Business consistent with past practice for purposes of facilitating the Business’s ordinary business activities). Promptly after the execution of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Agreement, Sellers shall, and shall direct its cause their Controlled Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing solicitations, discussions or negotiations with any person conducted heretofore third party that may be ongoing with respect to any Alternative Transaction. The Company also agrees that it will promptly Acquisition Proposal and shall request each person (other than the parties hereto and their respective Representatives) third party that has prior to been provided by or on behalf of Sellers or their Controlled Affiliates any confidential information regarding the date hereof executed a confidentiality agreement Business and the Transferred Subsidiaries in connection with its, his or her consideration of acquiring the Company considering an Acquisition Proposal to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to confidential information. In the date hereof. If the Company event that Sellers or any of its their Controlled Affiliates or Representatives receives any inquiry an inquiry, proposal or proposal offer with respect to an Alternative Transaction at any time Acquisition Proposal on or after the date hereof and prior to the Closing, then the Company shall promptly Sellers will provide Buyer with prompt (and in no any event later than within one (1) Business Day after the Company become aware of such inquiry or proposalDay) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05notice thereof.
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementhereof, the Company Seller shall not, and shall direct cause its Representatives Affiliates not to, directly or indirectly, (Aa) initiate, solicit, negotiate withfacilitate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, discuss, negotiate or accept any proposal ofinquiries, proposals or offers with respect to (i) the acquisition, in a single transaction or a series of related transactions, of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the outstanding shares of any class or series of equity securities or debt securities of Seller, the Company or any of its Subsidiaries or any interests therein, (ii) the acquisition (or assets any lease, license, long-term supply agreement or other arrangement having the same economic effect as an acquisition), in a single transaction or a series of related transactions, of a material portion of the Companyassets and properties of Seller, whether by the Company or any of its Subsidiaries or interests therein (on a consolidated basis), (iii) the merger, sale consolidation or combination of stockSeller, sale the Company or any of assetsits Subsidiaries or (iv) the recapitalization, business combination restructuring, reorganization, liquidation, dissolution or otherwise other extraordinary transaction with respect to Seller, the Company or any of its Subsidiaries (each of the foregoing in clauses (i) through (iv), an “Alternative Acquisition Transaction”), or (Bb) enter into any contract or agreement regardingconcerning or relating to an Acquisition Transaction, continue in each case with a party other than Buyer or otherwise participate in any discussions regardingan Affiliate of Buyer. In the event that Seller receives an inquiry, proposal or offer with respect to an Acquisition Transaction on or after the date hereof and prior to the Closing, or furnish obtains information that such an inquiry, proposal or offer is likely to be made, Seller shall provide Buyer with immediate notice thereof, which notice shall include the terms of, and the identity of the person or persons making, such inquiry, proposal or offer. Seller shall, and shall cause its Affiliates to, immediately terminate any person and all discussions or negotiations with any information third party with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, any Alternative Transaction or (C) commencean Acquisition Transaction. Prior to the Closing, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions Seller shall not be deemed a violation transfer, dispose of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than put an Encumbrance on the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration equity securities of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Subsidiaries.
Appears in 2 contracts
Samples: Stock Purchase Agreement (POSITIVEID Corp), Stock Purchase Agreement (Sanomedics, Inc.)
Exclusivity. (a) From the date Effective Date until the Closing or the earlier termination of this Agreement and ending on the earlier of in accordance with Article VIII, Seller Parties shall not (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause the Group Companies and its Representatives and their respective managers, officers, directors, stockholders, Representatives, agents, investment bankers and Affiliates not to), directly or indirectly, (A) discuss, pursue, solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessparticipate in, facilitate, encourage or otherwise enter into any Contract withdiscussions, negotiations, agreements or in any manner knowingly encourageother arrangements regarding or which could lead to, any proposal of, any person a possible sale or other disposition (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale reorganization, recapitalization or otherwise) of stockall or any part of the Ownership Interests, sale the Business or the Assets of assets, business combination any Group Company with any other Person other than the Buyer or otherwise its Affiliates (an “Alternative TransactionAcquisition Proposal”) or provide any information to any Person other than the Buyer and its Affiliates, and their Representatives other than information which is traditionally provided in the Ordinary Course of Business of the Group Companies to third parties where the Group Companies and their officers, directors and Affiliates have no reason to believe that such information may be utilized to evaluate any Acquisition Proposal. None of the Ownership Interests of any Group Company or otherwise shall be voted in favor of any Acquisition Proposal. Seller Parties shall (and shall cause the Group Companies and its and their respective managers, officers, directors, Representatives, agents, investment bankers and Affiliates to), (Ba) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease and cause to be terminated any and all existing Contracts, discussions or and negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (Person other than the parties hereto Buyer and their respective Representativesits Affiliates and Representatives regarding the foregoing, (b) that has prior to promptly notify the date hereof executed a confidentiality agreement in connection with itsBuyer if any Acquisition Proposal, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal contact with any Person with respect to an Alternative Transaction at any time prior to thereto which has been made as of the ClosingEffective Date or is subsequently made, then and (c) keep the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Buyer fully informed with respect to the sale status of the Company that prohibits it from considering such inquiry or proposalforegoing. Seller Parties agree not to (and to cause the Group Companies not to), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case without the identity prior consent of the person making such inquiry Buyer, release any Person from, or proposal. Without limiting the foregoingwaive any provision of, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the standstill agreement or confidentiality agreement to which any Group Company is a party or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05is otherwise bound.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Assisted 4 Living, Inc.), Membership Interest Purchase Agreement (Assisted 4 Living, Inc.)
Exclusivity. (a) From During the date of this Agreement Interim Period, and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementin all cases subject to Section 5.1, the Company shall not, and shall direct cause its Representatives and each Company Subsidiary not to, directly or indirectly, : (Ai) solicit, negotiate withinitiate or take any action to facilitate or encourage any inquiries or the making, provide any nonpublic information regarding the Company’s business, submission or enter into any Contract with, or in any manner knowingly encourageannouncement of, any proposal of, or offer from any person (Person or group of Persons other than BCAC Parent and its affiliatesParent Sponsor (and their respective Representatives, acting in their capacity as such) relating (a “Competing Buyer”) that may constitute, or could reasonably be expected to lead to, a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Competing Transaction; (an “Alternative Transaction”), (Bii) enter into any agreement regardinginto, participate in, continue or otherwise participate in engage in, any discussions regardingor negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual dataroom) any information relating to any Group Company or any of its assets or businesses, or furnish afford access to the assets, business, properties, books or records of any person any information Group Company to a Competing Buyer, for the purpose of assisting with respect toor facilitating, or cooperate in any way that would could otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Competing Transaction; (v) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Competing Transaction or any proposal or offer that would reasonably be expected to lead to a Competing Transaction, or publicly announce an intention to do so; or (Cvi) commence, continue resolve or renew agree to do any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation foregoing or otherwise authorize or permit any of this Section 7.05(a)its Representatives acting on its behalf to take any such action. The Company shall, and shall direct its Affiliates and Representatives acting on its behalf to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a5.18(a) by the Company or its Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a5.18(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Leo Holdings III Corp.), Agreement and Plan of Merger (Leo Holdings Corp. II)
Exclusivity. The Company shall, and shall use its reasonable best efforts to cause its Affiliates and its and their respective Representatives to immediately cease (a) From the date of any and all discussions or negotiations with any Person (other than Parent and its Affiliates and its and their respective Representatives) regarding a Competing Transaction, (b) furnishing to any Person (other than Parent and its Affiliates and its and their respective Representatives) any information with respect to a Competing Transaction and (c) cooperating with, assisting in, participating in, facilitating or encouraging a Competing Transaction. Until such time, if any, as this Agreement and ending on is terminated pursuant to the earlier of (i) the Closing and (ii) the termination of this Agreementterms hereof, the Company agrees that it shall not, and shall direct use its reasonable best efforts to cause its Affiliates and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (Ai) initiate, solicit, negotiate withknowingly encourage or otherwise facilitate any inquiries or the making of an offer or proposal regarding any Competing Transaction, provide (ii) engage in any nonpublic information regarding the Company’s businessnegotiations concerning, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person agreement (other than BCAC and an agreement with its affiliates) relating to a potential acquisition of all Subsidiaries or substantially all of the equity interests its or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior regarding a Competing Transaction or otherwise knowingly facilitate a Competing Transaction or (iii) except as described in the immediately following sentence, file any amendments to or make any other filing with the Commission with respect to the date hereof executed a confidentiality agreement in connection Registration Statement, including any public or publicly available correspondence with itsrespect thereto, his or her consideration request that the Registration Statement (or the prospectus contained therein) be declared effective by the Commission or make any public announcements with respect to an initial public offering of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries, notwithstanding the fact that any inquiry such failure to file or proposal with respect to an Alternative Transaction at any time prior to other inaction may result in the ClosingRegistration Statement (or the prospectus contained therein) being deemed stale by the Commission. Promptly after the date of this Agreement, then the Company shall promptly (and in no event later than one (1) Business Day after file a Registration Withdrawal Request on Form RW with the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Commission with respect to the sale of the Company that prohibits it from considering such inquiry or proposalRegistration Statement and, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be if deemed to be a breach of this Section 7.05(a) advisable by the Company. For clarity, make a filing with the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of Commission on Form 8-K and other appropriate filings with the terms of this Section 7.05Commission in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (LVB Acquisition, Inc.), Agreement and Plan of Merger (Zimmer Holdings Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) hereof until the Closing and (ii) or the early termination of this Agreement, the Company Warrantors shall not, and shall direct cause their respective Affiliates and its and their respective Representatives not to, directly or indirectly, (Ai) solicit, negotiate with, provide initiate or knowingly facilitate or encourage the submission of any nonpublic information regarding Acquisition Proposal or the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, making of any proposal of, or offer that could reasonably be expected to lead to any person Acquisition Proposal; (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bii) enter into any agreement regardinginto, continue or otherwise participate in any discussions negotiations with any Person regarding, or furnish to any person Person any nonpublic information with respect to, any Acquisition Proposal; (iii) enter into or cooperate engage in discussions with or assist, participate in, facilitate or encourage any way that would otherwise reasonably be expected to lead toeffort by, any Alternative Transaction Person with respect to any Acquisition Proposal; (iv) approve or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any Contract relating to any Acquisition Proposal; or (Cvi) commence, continue otherwise knowingly facilitate any effort or renew attempt by any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallPerson to arrange or consummate an Acquisition Proposal, and shall direct its Representatives toimmediately (w) cease, immediately cease any and cause to be terminated, all existing activities, negotiations and discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Acquisition Proposal, (x) revoke or withdraw access of any Person other than the parties hereto Purchaser, its Affiliates and their respective RepresentativesRepresentatives to any data room (virtual or actual) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or containing any of its Representatives receives any inquiry or proposal non-public information with respect to an Alternative Transaction at any time prior to Group Company or its Affiliates previously furnished and request from such Persons the Closingprompt return or destruction of all such non-public information, then the Company shall promptly (and in no event later than one (1y) Business Day after the Company become aware of such inquiry or proposal) immediately notify such person Purchaser in writing that the Company is subject upon receipt of any proposal, approach, offer, request or indication of interest from any third party relating to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalAcquisition Proposal, and will provide BCAC Purchaser with a copy information regarding the material terms of any such written inquiry or proposal or a detailed summary Acquisition Proposal which would reasonably be considered to be relevant for Purchaser to be aware of any such verbal inquiry or proposal, including in each case the identity context of the person making transactions contemplated hereby, and (z) take such inquiry action as is necessary to enforce any confidentiality or proposal. Without limiting the foregoing, the parties agree that any violation “standstill” provisions or provisions of the restrictions set forth in this Section 7.05(a) by the Company similar effect to which it is a party or its Representatives shall be deemed to be of which it is a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05beneficiary.
Appears in 2 contracts
Samples: Share Purchase Agreement (LightInTheBox Holding Co., Ltd.), Share Purchase Agreement (LightInTheBox Holding Co., Ltd.)
Exclusivity. Under this Agreement, Employee represents that he shall not, in his individual capacity or otherwise, render Services or accept employment from any other company, or become an officer, controlling shareholder or partner in any other entity engaged in the field of music technology, or that in other ways competes with the Company or poses, judged by good faith standards, a conflict of interest between the Company and the other entity. In the event Employee wishes to accept or retain a Board of Director’s position at any other entity, he shall obtain Board approval prior to accepting or retaining such position, with such Board approval not to be unreasonably withheld. Notwithstanding anything to the contrary stated in this Agreement, Employee may acquire and/or retain, as an investment, and take customary actions (aincluding the exercise or conversion of any securities or rights) From to maintain and preserve Employee's ownership of any one or more of the date of this Agreement and ending on the earlier of following (provided such actions, other than passive investment activities, do not unreasonably interfere with Employee's Services hereunder): (i) securities of any corporation that are registered under Sections 12(b) or 12(g) of the Closing Securities Exchange Act of 1934, as amended (the "Exchange Act"), and that are publicly traded as long as Employee is not part of any control group of such corporation and, in the case of public corporations in competition with the Company, such securities do not constitute more than five percent of the voting power of that public company; (ii) the termination any securities of this Agreementa partnership, the Company shall trust, corporation or other person so long as Employee remains a passive investor in that entity and so long as such entity is not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of competition with the Company, whether (iii) securities or other interests now owned or controlled, in whole or in part, directly or indirectly, by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate Employee in any discussions regarding, corporation or furnish to any other person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or and which are identified on Schedule 1.4 hereto; and (Civ) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance securities of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAffiliates. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth Nothing in this Section 7.05(a) by the Company or its Representatives Agreement shall be deemed to be a breach of this Section 7.05(a) by prevent or restrict Employee's ownership interest in the Company and its Affiliates or Employee's ability to continue any business activity in which Employee was engaged prior to joining the Company. For clarity, with the Company may inform exception of any person making an unsolicited proposal regarding an Alternative Transaction business that has as its business model the development, production, marketing, selling and distribution of the terms of this Section 7.05any technology whatsoever, or Employee’s ability to render charitable or community services.
Appears in 2 contracts
Samples: Executive Employment Agreement (Xumanii, Inc.), Executive Employment Agreement (White Smile Global, Inc.)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Warrantors and the Company or any of their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors and the Company shall notcause the other Group Companies and their respective Affiliates, officers, directors, representatives and shall direct its Representatives agents not to, directly (i) solicit, initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any material portion of the assets of the CompanyGroup Companies, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. The Warrantors and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto Warrantors and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return shall notify the Purchaser promptly if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors and the foregoingCompany agree not to, and to cause the parties agree that any violation other Group Companies not to, without the prior written consent of the restrictions set forth in this Section 7.05(a) by the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Warrantor or Group Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
Appears in 2 contracts
Samples: Share Purchase Agreement (NetEase, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Exclusivity. From the date hereof through the Closing or until such time as this Agreement shall have been terminated pursuant to Article X, Seller will not, nor will Seller authorize any Affiliate or Representative of Seller to, and Seller will instruct its Affiliates or Representatives not to (a) From directly or indirectly solicit, initiate, encourage or participate in any way in (including by way of furnishing confidential information), or take any other action that facilitates any discussion, inquiry, offer, proposal, negotiation or other communication with any Person or group (other than Buyer or its Representatives) relating to, or that could reasonably be expected to result in, any merger, consolidation, sale, exchange or other disposition of any substantial portion of the date assets outside of this Agreement and ending on the earlier ordinary course of business or equity interests of or any business combination, recapitalization, liquidation, dissolution or other similar transaction (ior any combination of any of the foregoing) relating to the Closing and (ii) the termination disposition of this Agreementall, or substantially all, or any substantial portion of, the Company shall notBusiness or the Purchased Assets (each, and shall direct its Representatives not toan “Acquisition Proposal”); (b) disclose, directly or indirectly, to any Person known to Seller to be considering an Acquisition Proposal any information concerning Seller, the Business or any of the Purchased Assets; or (Ac) solicitenter into, negotiate withcontinue or participate in any discussions, provide any nonpublic information regarding the Company’s businessnegotiations or other communications, or enter into any understanding, Contract withor commitment, with any third party relating to, or take any action in any manner knowingly encourage, any proposal furtherance of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether written Acquisition Proposal received by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Seller. The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it Seller will as promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly as practicable (and in no any event later than one within three (13) Business Day after the Company become aware of such inquiry or proposalDays) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy Buyer of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives Seller shall be deemed to be a responsible for any breach of this Section 7.05(a) 6.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05its Affiliates or Representatives.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boeing Co), Asset Purchase Agreement (Vought Aircraft Industries Inc)
Exclusivity. (a) From The Company and the date of this Agreement Seller grant to Buyer the exclusive right to acquire the Shares until the Final Termination Date. The Company shall not and ending on shall cause its Subsidiaries not to, and the earlier of (i) the Closing and (ii) the termination of this Agreement, Seller shall cause the Company shall not, and shall direct its Representatives Subsidiaries not to, directly or indirectly, indirectly (Aa) solicit, negotiate with, provide initiate or encourage the submission of any nonpublic information regarding proposal or offer from any Person relating to the Company’s businessacquisition of the Shares or any capital stock or other voting securities, or enter into any Contract with, or in any manner knowingly encourage, any proposal substantial portion of the assets of, the Company or any person of its Subsidiaries (other than BCAC and its affiliates) relating to including any acquisition structured as a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination consolidation or otherwise share exchange) or (an “Alternative Transaction”), (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person furnishing any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead todo or seek any of the foregoing. The Seller will notify Buyer immediately if any Person makes any proposal, offer, inquiry or contact with respect to any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing and the Transaction Documents Seller shall provide copies and disclose the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterms thereof to Buyer, and shall direct its Representatives to, immediately cease any and cause to be terminated and shall use its reasonable best efforts to cause all Company/Seller Representatives to immediately terminate and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalPersons. Without limiting the foregoing, the parties agree it is agreed that any violation of the restrictions set forth in this Section 7.05(a) above by any Affiliate of the Company Company, its Subsidiaries or the Seller or any of their Representatives, whether or not such Person is purporting to act on behalf of the Company, any of its Representatives Subsidiaries or the Seller, shall be deemed to be a breach of this Section 7.05(a) 5.6 by the Company. For clarity, its Subsidiary or the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Seller, as applicable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Homeland Security Capital CORP), Stock Purchase Agreement (DJSP Enterprises, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, the Company neither Seller nor bcIMC shall not, (and shall direct its not cause or permit their respective Affiliates or any of their or their Affiliates’ Representatives not to, ) directly or indirectly, : (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into encourage the submission of any Contract with, Acquisition Proposal or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliatesb) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected to lead toother manner, any Alternative Transaction effort or (C) commence, continue attempt by any Person to do or renew seek any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery Acquisition Proposal. Each of Seller and performance of this Agreement bcIMC shall immediately cease and the Transaction Documents and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shallterminated, and shall direct cause its Affiliates and all of its and their Representatives to, to immediately cease any and cause to be terminated, all existing discussions or negotiations with any person Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. Seller and bcIMC shall notify Buyer promptly (and in any event within three (3) Business Days) if any Person makes any proposal, offer, inquiry or contact with respect to any Alternative Transactionof the foregoing (whether solicited or unsolicited). The Company also agrees that it will promptly request each person For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than the parties hereto and their respective RepresentativesBuyer) that has prior to the date hereof executed concerning (i) a confidentiality agreement in connection with itsmerger, his consolidation, liquidation, recapitalization, share exchange or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If other business combination transaction involving the Company or any of its Representatives receives any inquiry the MUI Subsidiaries; (ii) the issuance or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware acquisition of such inquiry shares of capital stock or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale other Equity Interests of the Company that prohibits it from considering such inquiry or proposalany of the MUI Subsidiaries; or (iii) the sale, and will provide BCAC with a copy lease, exchange or other disposition of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity significant portion of the person making such inquiry Company’s or proposalany MUI Subsidiary’s properties or assets. Without limiting Notwithstanding the foregoing, the parties agree that any violation of the restrictions set forth nothing in this Section 7.05(a) by 6.8 will restrict Seller from complying with its obligations to bcIMC pursuant to the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Stockholders Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement in accordance with its terms, the Company shall not, and shall direct its Representatives cause the Subsidiaries and their respective officers, directors, employees, agents, partners, Affiliates and other representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, assist or respond to the submission of any proposal ofor offer from any Person relating, with respect to the Company or any person Subsidiary, to any (other than BCAC and its affiliatesa) relating to a potential liquidation, dissolution or recapitalization, (b) merger or consolidation, (c) acquisition or purchase of all or substantially all a significant portion of the assets of, or any equity interests interest in, the Company or assets of the Company, whether by merger, sale of stock, sale of assets, any Subsidiary or (d) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or (C) commence, continue or renew enter into any due diligence investigation regarding any Alternative agreement with respect to a Competing Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause all Persons acting on its Representatives behalf to, (i) immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing, (ii) not make any other filings with the SEC other than in connection with withdrawing the Registration Statement, which it may elect to do at its option, and (iii) immediately cease all marketing activities in connection with the contemplated initial public offering of equity securities of the Company. The As soon as reasonably practicable after the date hereof, the Company also agrees that it will promptly request shall instruct each person Person (other than the parties hereto Parent and Merger Sub and their respective Representativesrepresentatives) in possession of confidential information about the Company that has prior was furnished pursuant to the date hereof executed a confidentiality agreement within the prior twelve (12) months in connection with its, his any actual or her consideration of acquiring potential proposal by such Person to acquire the Company (or any portion thereof, other than pursuant to the offering contemplated by the Registration Statement) to promptly return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05information.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Amerisourcebergen Corp)
Exclusivity. (a) From In consideration of the date substantial expenditures of time and expense to be undertaken by Buyers in connection with the consummation of the transactions contemplated by this Agreement and Agreement, for a period ending on the earlier of (ia) the Closing and September 30, 2014, (iib) the termination of this AgreementAgreement or (c) the Second Closing, Sellers and the Equity Owner shall deal exclusively with Buyers with respect to the sale of the Purchased Assets, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessBusiness, or enter into any Contract withthe issuance of the equity interests of, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the assets or properties of, Sellers. In addition, during such time period, Sellers shall not, and shall direct their officers, directors, financial advisors, accountants, attorneys, and other Affiliates (collectively, together with Sellers and the Equity Owner, the "Selling Group") not to (a) solicit submission of proposals or offers from any Person other than Buyers (or their Affiliates) relating to any acquisition or purchase of all or any part of the equity interests, assets or properties of Sellers, the sale or issuance of any equity interests of Sellers or any entity formed by the Equity Owner or any Affiliate thereof to which any of the equity interests or any assets or properties of the CompanyBusiness may be contributed, whether or any merger or consolidation of any Seller or of any entity formed by mergerthe Equity Owner or its Affiliates to which any assets or properties of the Business may be contributed (each an "Acquisition Proposal"); provided, sale however, in no event shall the foregoing prohibit Sellers or the Equity Owner (or their Affiliates) from selling the assets and businesses of stockXxxxxxx Lubricant Works, sale of assetsLLC or CAM2 International, business combination LLC, (b) participate in any discussions or negotiations regarding, or furnish any information to any Person other than Buyers (and its representatives), or otherwise cooperate in any way or assist, facilitate, or encourage any Acquisition Proposal by any Person other than Buyers or (an “Alternative Transaction”), (Bc) enter into any agreement regardingor understanding, continue whether oral or otherwise participate in any discussions regardingwritten, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and prevent the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)transactions contemplated hereby. The Company shallEquity Owner and Sellers agree to (w) notify Buyers immediately if any member of the Selling Group receives any indication of interest, request for information, or offer in respect of an Acquisition Proposal, (x) inform the persons sending such indication, request, or offer that Sellers and the Business are bound by an exclusivity arrangement (without any reference to Buyers or its respective Affiliates), (y) communicate to Buyers in reasonable detail the terms of any such indication, request, or proposal, and shall direct its Representatives to, immediately cease any and (z) provide to Buyers copies of all existing discussions or negotiations with any person conducted heretofore with respect written communications relating to any Alternative Transactionsuch indication, request, or proposal. The Company also agrees Except as provided in the proviso contained in this paragraph above, the Equity Owner and Sellers represent that it will promptly request each person (other than no member of the parties hereto and their respective Representatives) that has prior Selling Group is a party to the date hereof executed a confidentiality or bound by any agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later Acquisition Proposal other than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in under this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Agreement.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Vertex Energy Inc.)
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) From 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 date of this Agreement and ending on Target Acquisition), nor (b) enter into any agreement, arrangement, understanding or negotiations with any other Person, including Target (other than with respect to the earlier of Target Acquisition), with respect to (i) the Closing and 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 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, the Company shall Agreement it will not, and shall direct 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 following consummation of the Target Acquisition will cause Target not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract withagreement, arrangement or in any manner knowingly encourage, any proposal of, any person understanding requiring it to abandon or terminate the Transaction (other than BCAC and its affiliates) relating to a potential acquisition of all any agreement, arrangement or substantially all of the equity interests understanding with any governmental or assets of the Company, whether by merger, sale of stock, sale of assets, business combination regulatory body or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aagency). The Company shall, Each of PGI and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior GL represents to the date hereof executed a confidentiality agreement in connection with its, his other Party that neither is party to or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person bound by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalTarget Acquisition other than this Agreement. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth The term "Person" in this Section 7.05(a) by the Company Agreement will be interpreted broadly to include, without limitation, any corporation, company (including limited liability company), partnership, joint venture or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05individual.
Appears in 1 contract
Samples: Agreement (Polymer Group Inc)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article VIII, the Company Seller Parties shall not, not (and shall direct cause the Group Companies and its Representatives and their respective managers, officers, directors, stockholders, Representatives, agents, investment bankers and Affiliates not to), directly or indirectly, (A) discuss, pursue, solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessparticipate in, facilitate, encourage or otherwise enter into any Contract withdiscussions, negotiations, agreements or in any manner knowingly encourageother arrangements regarding or which could lead to, any proposal of, any person a possible sale or other disposition (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale reorganization, recapitalization or otherwise) of stockall or any part of the Ownership Interests, sale the Business or the Assets of assets, business combination any Group Company with any other Person other than the Buyer or otherwise its Affiliates (an “Alternative TransactionAcquisition Proposal”) or provide any information to any Person other than the Buyer and its Affiliates, and their Representatives other than information which is traditionally provided in the Ordinary Course of Business of the Group Companies to third parties where the Group Companies and their officers, directors and Affiliates have no reason to believe that such information may be utilized to evaluate any Acquisition Proposal. None of the Ownership Interests of any Group Company or otherwise shall be voted in favor of any Acquisition Proposal. Seller Parties shall (and shall cause the Group Companies and its and their respective managers, officers, directors, Representatives, agents, investment bankers and Affiliates to), (Ba) enter into immediately cease and cause to be terminated any agreement regardingand all Contracts, continue or otherwise participate in discussions and negotiations with any discussions regardingPerson other than the Buyer and its Affiliates and Representatives regarding the foregoing, (b) promptly notify the Buyer if any Acquisition Proposal, or furnish to any person inquiry or contact with any information Person with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that thereto which has been made as of the execution, delivery and performance date of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallor is subsequently made, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than c) keep the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Buyer fully informed with respect to the sale status of the Company that prohibits it from considering such inquiry or proposalforegoing. Seller Parties agree not to (and to cause the Group Companies not to), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case without the identity prior consent of the person making such inquiry Buyer, release any Person from, or proposal. Without limiting the foregoingwaive any provision of, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the standstill agreement or confidentiality agreement to which any Group Company is a party or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05is otherwise bound.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Assisted 4 Living, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the The Company shall not, and the Company shall direct require each of its Representatives officers, directors, employees, representatives and agents not to, directly or indirectly, (Ai) initiate, solicit, negotiate withencourage or otherwise facilitate any inquiry, provide proposal, offer or discussion with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person party (other than BCAC and its affiliatesthe Buyer) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyconcerning any merger, whether by mergerreorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, sale of assetsmaterial assets or similar business transaction involving the Company, business combination any Subsidiary or otherwise (an “Alternative Transaction”)any division of the Company, (Bii) enter into furnish any agreement regardingnon-public information concerning the business, continue properties or otherwise participate in assets of the Company, any discussions regarding, Subsidiary or furnish any division of the Company to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction party (other than the Buyer) or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing engage in discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person party (other than the parties hereto and their respective RepresentativesBuyer) concerning any such transaction. The Company shall immediately notify any party with which discussions or negotiations of the nature described in clause (i) above were pending that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return is terminating such discussions or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofnegotiations. If the Company receives any inquiry, proposal or any offer of the nature described in clause (i) above, the Company shall, within one (1) business day after such receipt, notify the Buyer of its Representatives receives any inquiry receipt of such inquiry, proposal or proposal with respect to an Alternative Transaction at any time prior offer, including the identity of the other party. Notwithstanding anything to the Closingcontrary in this Section 4.5 or elsewhere in this Agreement, then the Company’s Board of Directors or officers shall not be prohibited from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written proposal to acquire the Company if (x) the Company’s Board of Directors determines in good faith (based upon advice from legal counsel) that such action is required for the Company’s Board of Directors to comply with its fiduciary duties to the Company Stockholders under applicable law, and (y) the Company has obtained from such person a confidentiality agreement on terms the Company determines in good faith to be no less favorable to the Company than those contained in the confidentiality provisions of the letter of intent dated February 11, 2008 between the Buyer and the Company. If the Board of Directors of the Company receives a proposal of the nature described in the preceding sentence which it determines in good faith to be superior to the Merger (after consultation with its financial advisors and legal counsel), taking into account the person making such proposal and the likelihood and timing of consummation (including financial, legal, regulatory and other aspects of such proposal deemed relevant by the Company’s Board of Directors in good faith) and which is not conditioned upon obtaining additional financing (such other proposal, a “Superior Proposal”), (i) the Company shall promptly so notify the Buyer, including the terms of such Superior Proposal and (and in no event later than one (1ii) Business Day after the Company’s Board of Directors may withdraw or modify the Company become aware of such inquiry Recommendation, approve or proposalrecommend the Superior Proposal or (only after terminating the Agreement pursuant to Section 7.1(f)) notify such person in writing that the Company is subject to enter into an exclusivity agreement with respect to the sale such Superior Proposal (either of which shall be deemed, for purposes of Section 7.1(g) hereof, a withdrawal of the Company that prohibits it from considering such inquiry Recommendation) or proposalterminate this Agreement in accordance with Section 7.1(f); provided, and will provide BCAC with a copy of that, at least two (2) business days prior to taking any such action, the Company gives written inquiry or notice thereof to the Buyer, setting forth in reasonable detail, the material terms and conditions of such Superior Proposal and the Buyer shall not have, within such two (2) business day period, proposed an improved transaction to the Company’s Board of Directors unless the Company’s Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that such improved transaction proposed by the Buyer is not at least as favorable to the Company Stockholders as the Superior Proposal. The foregoing notice requirements and opportunity for the Buyer to respond to such other proposal or a detailed summary offer shall similarly apply to any modification of any such verbal inquiry other proposal or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) offer received by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Company Warrantors or any of their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors shall cause the other Group Companies and their respective Affiliates, officers, directors, representatives and agents to not, and shall direct its Representatives not to(i) solicit, directly initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any material portion of the assets of the CompanyGroup Companies, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company Warrantors immediately shall, and the Warrantors immediately shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will Warrantors shall notify the Purchaser promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsif any such proposal or offer, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors agree not to, and the foregoingWarrantors shall cause the other Group Companies not to, without the parties agree that any violation prior written consent of the restrictions set forth in this Section 7.05(a) by the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Warrantor or Group Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
Appears in 1 contract
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) until the Closing and (ii) the or termination of this AgreementAgreement pursuant to its terms, the Company shall Sellers will not, and shall direct its Representatives not nor will they authorize or permit the Company, or any of the Sellers’ or the Company’s officers, directors, employees or Affiliates, or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (Ai) solicit, negotiate withinitiate, provide encourage or induce the making, submission or announcement of any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or cooperate in take any way other action to facilitate any inquiries or the making of any proposal that would otherwise constitutes, or may reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (Cv) commenceenter into any letter of intent or similar document or any contract, continue agreement or renew commitment contemplating or otherwise relating to any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Acquisition Proposal. The Company shallSellers will, and shall direct its Representatives will cause the Company to, immediately cease any and all existing activities, discussions or negotiations with any person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth in this Section 7.05(a) the preceding two sentences by any officer, director or employee of the Sellers, the Company, or any of their Affiliates, or any investment banker, attorney or other advisor or representative of any Seller, the Company or its Representatives any of their Affiliates shall be deemed to be a breach of this Section 7.05(a) 5.4 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Sellers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Inverness Medical Innovations Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, none of the Company shall notor the Holder Representative shall, and the Company and the Holder Representative shall direct its not permit or cause any of their respective controlled Affiliates and their and their respective controlled Affiliates’ Representatives not to, directly or indirectly, (Aa) initiate, solicit, negotiate withenter into, provide any nonpublic information regarding the Company’s businessmaintain, continue or enter into any Contract engage in discussions or negotiations with, or in provide any manner knowingly encourageinformation to, any proposal of, any person Person (other than BCAC Parent, Buyer, Merger Sub and its affiliatestheir Representatives) relating to a potential concerning any purchase or acquisition of all or substantially all a material portion of the equity interests or assets Equity Interests of the Company, whether by Company or its Subsidiaries or any merger, consolidation, recapitalization, reorganization or business combination involving, or sale of stockall or substantial portion of the assets of, sale of assetsthe Company or its Subsidiaries or similar transactions involving the Company or its Subsidiaries (each such transaction, business combination or otherwise (an “Alternative Acquisition Transaction”), (Bb) solicit, initiate, facilitate or encourage the submission of any proposal, indication of interest or offer from any Person (other than Parent, Buyer, Merger Sub and their Representatives) relating to an Acquisition Transaction or (c) enter into any agreement regardingletter of intent or purchase agreement, continue merger agreement, term sheet or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations Contract with any person conducted heretofore Person other than Parent, Buyer, Merger Sub and their Representatives with respect to any Alternative Acquisition Transaction. The Each of the Company also agrees that it will promptly request each person (other than and the parties hereto Holder Representative shall, and the Company and the Holder Representative shall cause their respective controlled Affiliates and their and their respective Representatives) that has prior controlled Affiliates’ Representatives to, promptly, to the date hereof executed a confidentiality agreement extent that they have not done so already, (i) cause any negotiations, discussions or activities of the type described in connection with its, his or her consideration of acquiring the Company preceding sentence that may currently be in progress to return or destroy be terminated and (ii) request and require all Confidential Information furnished third parties to such person whom information has been given by or on behalf of itthe Company, him or her prior to the date hereof. If the Company Holder Representative or any of its Representatives receives any inquiry their controlled Affiliates, if any, to destroy or proposal with respect to an Alternative Transaction at any time prior return such information to the ClosingCompany, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware Holder Representative or any of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect their respective controlled Affiliates to the sale of extent the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingCompany, the parties agree that Holder Representative or any violation of their respective controlled Affiliates has the restrictions set forth in this Section 7.05(a) by the Company power to do so pursuant to a Contract or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Polaris Industries Inc/Mn)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) Date or the termination of this AgreementAgreement in accordance with its terms, the Sellers, the Company and the Blocker shall not, and shall not permit any of their Affiliates or any of their or their Affiliates’ directors, managers, officers or employees to, and shall direct its their respective Representatives not to, directly or indirectly, (Aa) solicitinitiate, negotiate with, provide solicit or knowingly facilitate or encourage any nonpublic information regarding inquiries or the Company’s businessmaking of any proposal or offer from any Person or group of Persons that may constitute, or enter into any Contract withwould reasonably be expected to lead to, the direct or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential indirect acquisition of all or substantially all any significant part of the equity interests or the assets of the CompanyCompany or any Company Subsidiary, whether by merger, sale purchase of stockequity interests, sale issuance of equity interests, purchase of assets, business combination tender offer, loan or otherwise (each, an “Alternative Transaction”), (Bb) engage in, enter into any agreement regardinginto, continue or otherwise participate in any discussions regardingor negotiations (other than solely to cause such discussions or negotiations to be terminated) with any Person or group of Persons (other than Buyer and its Affiliates and Representatives) with respect to an Alternative Transaction, or furnish provide any non-public information or data concerning, the Blocker or the Company Group to any person any information with respect toPerson or group of Persons (other than Buyer and its Affiliates and Representatives) that Sellers, the Company or Blocker believe or should reasonably know would be used for purposes of formulating an inquiry relating to an Alternative Transaction, or cooperate (c) approve, endorse, recommend or enter into any acquisition agreement, purchase agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any way that would otherwise reasonably be expected other agreement relating to lead to, any an Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery other than with Buyer and performance its Affiliates and Representatives). Immediately upon execution of this Agreement Agreement, (i) the Sellers, Blocker and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its their Representatives to, immediately cease terminate any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (Person other than the parties hereto Buyer and their respective Representativesits Affiliates and Representatives regarding an Acquisition Transaction and (ii) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after request that each Person to which the Company become aware of such inquiry or proposal) notify such person in writing that has provided confidential information relating to the Company is subject to an exclusivity agreement with respect to the sale of and the Company that prohibits it from considering such inquiry or proposalSubsidiaries and has afforded access to, and will provide BCAC engaged in discussions with, in connection with a copy of proposed Alternative Transaction (other than Buyer and its Affiliates and Representatives), promptly return or destroy any such written inquiry or proposal or a detailed summary of information (except for any such verbal inquiry or proposalaccess that does not relate to, including and was not provided in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingconnection with discussions concerning, the parties agree that any violation of the restrictions set forth a potential Alternative Transaction) in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of accordance with the terms of this Section 7.05the confidentiality agreement such Person entered into with Xxxxxxx Xxxxx & Company, L.L.C. on behalf of the Company.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier occurs of (i) the Closing and (ii) or the termination of this Agreement, none of the Sellers, the Company, nor any of their respective directors, officers, employees, agents, representatives, shareholders or Affiliates (collectively, the "Company Group") shall notinitiate, and shall direct its Representatives not tosolicit, entertain, negotiate, accept or discuss, directly or indirectly, or encourage inquiries or proposals (Aeach, an "Acquisition Proposal") solicitwith respect to, negotiate with, provide or furnish any nonpublic information regarding the Company’s businessrelating to or participate in any negotiations or discussions concerning, or enter into any Contract with, or in any manner knowingly encourageagreement with respect to, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition or purchase of all or substantially all a substantial portion of the equity interests business, assets, properties, capital stock or assets capital stock equivalents of the CompanyCompany or any of its Subsidiaries (a "Potential Sale"), whether by merger, combination, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)otherwise, (B) or enter into any agreement regardingagreement, continue arrangement or otherwise participate in any discussions regardingundertaking requiring it to abandon, terminate or furnish fail to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that consummate the execution, delivery and performance of transaction contemplated by this Agreement Agreement. The Sellers and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives cause each other member of the Company Group to, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (parties, other than the parties hereto and their respective Representatives) that has Buyer, conducted prior to the date hereof executed a confidentiality agreement with respect to any Acquisition Proposal. The Company or the Sellers shall (i) immediately inform Buyer of any inquiries any member of the Company Group receives after the date hereof concerning an Acquisition Proposal or Potential Sale and provide Buyer with copies of all correspondence or other documents received in connection with itstherewith, his and (ii) inform the Persons sending such inquiries, requests or her consideration of acquiring proposals that the Company is bound by an exclusivity arrangement (without any reference to return Buyer, its Affiliates, or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofits potential financing sources). If The Sellers and the Company represent that each is not a party to or bound by any of its Representatives receives any inquiry or proposal agreement with respect to an Alternative Transaction at any time prior to Acquisition Proposal other than under this Agreement. Each of the Closing, then Sellers and the Company shall promptly (cause its officers, directors, agents and in no event later than one (1) Business Day after advisors to comply with the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach provisions of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.055.5.
Appears in 1 contract
Samples: Stock Purchase Agreement (Stryker Machining Facility Co)
Exclusivity. (a) From the date of this Agreement and ending on through the earlier of (i) the Closing and (ii) the termination of such time as this AgreementAgreement is terminated in accordance with Article 9, the Company Truist shall not, and shall direct cause the Company and its Affiliates and their respective Representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide knowingly facilitate or knowingly encourage any nonpublic Proposal from any Person, (b) engage in, continue, knowingly facilitate, knowingly encourage or otherwise participate in discussions or negotiations in respect of a Proposal, (c) furnish or cause to be furnished to any Person any information regarding concerning the Company’s businessCompany Entities in connection with a Proposal, or (d) enter into any Contract with(including any letter of intent, agreement, agreement in principle or in any manner memorandum of understanding) or similar agreement, arrangement or understanding providing for a Proposal or (e) otherwise knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing. Truist further agrees to immediately suspend and terminate, and to instruct its Representatives to immediately suspend and terminate, any activities that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that prohibited by the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallforegoing sentence, and Truist shall direct its Representatives topromptly (and, immediately cease in any and all existing discussions event, within three Business Days following the date hereof) instruct or negotiations with otherwise request any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) Person that has executed a confidentiality agreement within the 12-month period prior to the date hereof executed a confidentiality agreement of this Agreement in connection with its, his or her consideration of acquiring the Company any Proposal to promptly return or destroy all Confidential Information furnished information or documents relating to Truist, any Company Entity, the transactions contemplated hereby or any Proposal (and all materials incorporating such information in the possession of such person by or its Representatives) and, to the extent provided under the terms of such confidentiality agreement, obtain from such Persons confirmation of compliance promptly after making any such instruction or request. To the extent any of Truist, any Company Entity or any of their respective Affiliates or Representatives receives a Proposal or request for information in respect thereof, Truist (on behalf of ititself or its Affiliate or Representative) shall provide prompt (and, him or her prior in any event, within 24 hours) written notice thereof to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the ClosingBuyer Entities, then the Company which shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with include a copy of any communication related to such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalProposal. Without limiting Notwithstanding the foregoing, the parties agree Truist shall not be responsible for any actions taken by either Stone Point, CD&R or any investment funds or investment vehicles affiliated with, or managed or advised by, Stone Point or CD&R that any violation of the restrictions set forth in may contravene this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Section 5.07.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Truist Financial Corp)
Exclusivity. (a) From Prior to the date of Effective Time, or until this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementis terminated in accordance with its terms, the Company shall not, and shall direct cause its Representatives Subsidiaries and Affiliates and its and their respective officers, employees, directors, agents or representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide any nonpublic information regarding the Company’s business, facilitate or enter into any Contract initiate discussions or engage in negotiations with, or in provide information to, or authorize any manner knowingly financial advisor or other Person to solicit, encourage, any proposal offacilitate or initiate discussions or engage in negotiations with, or provide information to, any person Person (other than BCAC and its affiliatesParent) relating to a concerning any potential acquisition sale of all or substantially all any of the equity interests capital stock of, or assets of the Company, whether by merger, sale of stockconsolidation, combination, sale of assets, business combination reorganization or otherwise other similar transaction involving, Company or any of its Subsidiaries or stockholders (an “Alternative TransactionProposal”). Until this Agreement is terminated in accordance with its terms, Company shall promptly (B) enter into any agreement regarding, continue or otherwise participate and in any discussions regardingevent within two (2) business days after receipt thereof by Company or any Affiliate) advise Parent orally and in writing of any Alternative Proposal (including the proposed terms thereof), any request for information with respect to any Alternative Proposal, or furnish to any person any information written inquiry with respect to, or cooperate in any way that would otherwise which could reasonably be expected to lead toresult in, any an Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that Proposal. Promptly following the execution, delivery and performance execution of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Agreement, Company shall, and shall direct cause its Representatives Subsidiaries and Affiliates and its and their respective officers, employees, directors, agents or representatives to, immediately cease and terminate any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative TransactionProposal, and use commercially reasonable efforts to obtain the return from all such Persons or cause the destruction of all copies of confidential information previously provided to such parties (including by enforcing any rights under any confidentiality, non-disclosure or similar agreements with such parties). The Notwithstanding anything contained herein to the contrary, Company also agrees that Parent shall be entitled to specifically enforce this Section 5.4 in any court having equity jurisdiction, it will promptly request each person (other than the parties hereto being acknowledged and their respective Representatives) agreed that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree breach will cause irreparable injury to Company and that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed money damages may not provide an adequate remedy to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Agreement and Plan of Merger (National Bank Holdings Corp)
Exclusivity. During the Pre-Closing Period, the Company shall, and shall cause the Company Subsidiaries and its and their respective directors, officers, partners, members, managers, trustees, employees, agents and advisors (acollectively, the “Company Representatives”) From to, deal exclusively with the date Purchaser and its designated representatives regarding any and all acquisitions of, or investments in, the Company, any of this Agreement and ending on the earlier Company Subsidiaries or the Business, whether by way of merger, consolidation or other business combination with any other Person, purchase or exchange of capital stock or other equity interests, purchase of assets or otherwise (ian “Alternative Transaction”) and, without the Closing and (ii) prior consent of the termination of this AgreementPurchaser, the Company shall not, and shall direct its cause the Company Subsidiaries and the Company Representatives not to, directly or indirectly, : (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, initiate or enter into any Contract with, or otherwise engage in any manner knowingly encouragenegotiations, discussions or other communications with any proposal of, any person (other than BCAC and its affiliates) Person relating to a potential acquisition of all any Alternative Transaction; (b) provide information or substantially all of the equity interests or assets of documentation to any other Person with respect to the Company, whether by merger, sale any of stock, sale the Company Subsidiaries or any of assets, business combination or otherwise (an “their respective assets in respect of any Alternative Transaction”), ; or (Bc) enter into any agreement regardingContract, continue letter of intent, memorandum of terms or otherwise participate understanding with any other Person in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding of any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its cause the Company Subsidiaries and the Company Representatives to, cease immediately cease all discussions and negotiations that commenced prior to the date of this Agreement regarding any and all existing discussions Alternative Transaction or negotiations with any person conducted heretofore with respect would reasonably be expected to any lead to an Alternative Transaction. The Company also agrees that it will shall promptly request each person (other than the parties hereto and their respective Representatives) that has prior to after the date hereof of this Agreement instruct each Person which has heretofore executed a confidentiality agreement in connection relating to an Alternative Transaction with its, his or her consideration for the benefit of acquiring the Company to promptly return or destroy all Confidential Information furnished to such person by or on behalf of itinformation, him or her prior documents, and materials relating to the date hereof. If Alternative Transaction or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of Representatives to such inquiry Person or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale any of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Representatives in accordance with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05any confidentiality agreement with such Person.
Appears in 1 contract
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Warrantors, the Company Seller and their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors and the Seller shall cause the other Group Companies and their respective Affiliates, officers, directors, representatives and agents to not, and shall direct its Representatives not to(i) solicit, directly initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any portion of the assets of the any Group Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. The Warrantors and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Seller immediately shall, and the Warrantors and the Seller immediately shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will Warrantors and the Seller shall notify the Purchaser promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsif any such proposal or offer, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors and the foregoingSeller agree not to, and the Warrantors and the Seller shall cause the other Group Companies not to, without the prior written consent of the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Warrantor, the parties agree that Seller or any violation of the restrictions set forth in this Section 7.05(a) by the Group Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
Appears in 1 contract
Exclusivity. (a) From a)From the date of this Agreement and ending on through the earlier of (i) the Closing and (ii) the termination of this AgreementClosing, the Company shall Sellers will not, and shall direct its Representatives cause their respective officers, employees, representatives, advisers, agents and Affiliates not to, directly or indirectly, (A) solicit, negotiate withencourage, provide facilitate or initiate any nonpublic information regarding inquiries or the Company’s businessmaking of any proposals or offers from, engage in negotiations or enter into any Contract discussions with, or provide any information or data to, or otherwise cooperate in any manner knowingly encouragewith, any proposal of, any person Person or group of Persons (other than BCAC Buyer and its affiliatesAffiliates) relating to a potential acquisition of all concerning any direct or substantially all of the equity interests indirect sale or assets of the Companyother disposition of, whether by or merger, sale of stock, sale of assetsconsolidation, business combination or otherwise (an “Alternative Transaction”)similar transaction involving, (B) enter into all or any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation portion of the Transactions shall not be deemed a violation of this Section 7.05(a)Business, the Acquired Companies, the Transferred Assets, the Assumed Liabilities or the Subject Contracts. The Company Sellers shall, and shall direct its Representatives cause their respective officers, employees, representatives, advisers, agents and Affiliates to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person parties conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will Sellers shall promptly notify Buyer if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with or about the Business, the Acquired Companies, the Transferred Assets, the Assumed Liabilities or the Subject Contracts and shall promptly request each person (other than the parties hereto and their respective Representatives) that Person who has prior to the date hereof heretofore executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company Business, the Acquired Companies, the Transferred Assets, the Assumed Liabilities or the Subject Contracts to return or destroy in accordance with the applicable confidentiality agreement, all Confidential Information confidential information heretofore furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Sellers.
Appears in 1 contract
Samples: Stock Purchase and Asset Transfer Agreement (Cigna Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Seller shall not, and shall direct its cause the Company Entities and their respective Representatives not to, solicit, initiate, encourage, discuss or negotiate with any other Person a possible sale (directly or indirectly) of the Seller Business, in the form of a sale of all or any material portion of the Seller’s assets related to the Seller Business, including any sale of the Company Entities (Aother than the sale of inventory in the ordinary course of business) solicit, negotiate with(an “Acquisition Proposal”), provide any nonpublic information regarding to any other Person concerning such business (other than information which the Company’s Company Entities provides to other Persons in the ordinary course of business, so long as the Seller has no reason to believe that the information may be utilized to evaluate an Acquisition Proposal) or enter into an agreement, arrangement or understanding, whether written or oral, with any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesthe Buyer) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement Acquisition Proposal. The Seller and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Entities shall, and shall direct its cause each of their Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will such Acquisition Proposal and promptly request each person (other than but in any event within five Business Days) after the parties hereto and their respective Representatives) that has date of this Agreement, if not already done so prior to the date hereof executed of this Agreement, instruct any Person who entered into a confidentiality agreement with the Seller that has not expired or been terminated in connection with its, his any actual or her consideration of acquiring the Company potential Acquisition Proposal to return or destroy all Confidential Information furnished to such person by information or on behalf documents in accordance with the terms of it, him or her prior to such confidentiality agreement. From and after the date hereof. If , the Seller shall promptly inform the Buyer of any contact with any third party relating to the foregoing, and promptly communicate to the Buyer the terms of any proposal or inquiry which a Company or any of its Representatives receives any inquiry or proposal Entity may receive after the date hereof with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (i) enter into, solicit, initiate or continue any discussions or negotiations with, or encourage or respond to any 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 entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (A) solicit, negotiate with, provide any nonpublic information regarding sale of assets of the Company equal to 15% or more of the Company’s businessassets or to which 15% or more of the Company’s revenues or earnings are attributable, (B) the issuance or enter into acquisition of 15% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 15% or more of the combined voting power of the Company or (C) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 15% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with TortoiseCorp and its Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)7.05. The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it them from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.05 by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.05 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Business Combination Agreement and Plan of Reorganization (Tortoise Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article VII, the Company shall not, will not (and shall direct will not cause or permit any Subsidiary or its or their Affiliates or Representatives not to, directly or indirectly, (A) solicit, negotiate initiate, enter into, or continue discussions, negotiations, or transactions with, or encourage or respond to any inquiries or proposals by, or provide any nonpublic information regarding the Company’s businessto any Person relating to, or enter into or consummate any Contract withtransaction relating to, or in (i) any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stockthe Company’s equity interests or a material portion of the Company’s or its Subsidiaries’ assets, or a similar change in control transaction with respect to the Company or any Subsidiary or (ii) any financing, investment, acquisition, purchase, merger, sale of assetsor any other similar transaction that would restrict, business combination prohibit or otherwise inhibit the Company’s ability to consummate the Transactions contemplated by this Agreement (an the transactions in subsections (i) and (ii), collectively “Alternative TransactionCompeting Company Transactions”). In addition, (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallwill, and shall direct will cause each of its Subsidiaries and its and their respective Representatives to, immediately promptly cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Competing Company Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day 48 hours after the Company become becoming aware of such inquiry inquiry, proposal, offer or proposalsubmission) (x) notify such person in writing that Parent if the Company is subject or, to an exclusivity agreement the Company’s Knowledge, any of its Subsidiaries, Affiliates, or Representatives receives any inquiry, proposal, offer or submission with respect to a Competing Company Transaction after the sale execution and delivery of this Agreement, (y) notify Parent of the Company that prohibits it from considering identity of the Person making such inquiry or submitting such proposal, offer or submission, and will (z) provide BCAC Parent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or inquiry, proposal, including offer or submission (in each the case of subsections (y) and (z) only, to the identity extent not prohibited by any applicable non-disclosure agreement entered into prior to the date of the person making such inquiry or proposal. Without limiting the foregoingExclusivity Agreement, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by to which the Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) party, as determined in good faith by the Company. For clarity, in which case the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of shall provide such notice to the terms of maximum extent not prohibited). The Company agrees that the rights and remedies for noncompliance with this Section 7.054.3(a) include specific performance, it being acknowledged and agreed that any breach or threatened breach will cause irreparable injury to Parent and that money damages would not provide an adequate remedy for such injury.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on to the earlier of (i) the Closing and (ii) such time as this Agreement is terminated in accordance with its terms, except for the termination of this AgreementTransactions, the Company shall not, and shall direct cause its Affiliates and Representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate or knowingly encourage any inquiry, provide indication of interest, proposal or offer from any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Parent, its Affiliates and its affiliates) relating their Representatives), with respect to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (Bb) enter into any agreement regarding, continue or otherwise (i) participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Person (other than Parent, its Affiliates and their Representatives) regarding a Competing Transaction, (ii) furnish to any Person (other than Parent, its Affiliates and their Representatives) any information or documentation with respect to a Competing Transaction or the Company Group and (iii) cooperate with, assist in, participate in, facilitate or encourage a Competing Transaction or (c) enter into any Alternative Transaction. The Company also agrees that it will promptly request each person understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with any Person (other than the parties hereto Parent, its Affiliates and their respective Representatives) that has prior to regarding a Competing Transaction. Promptly following the date execution hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no any event later than within one (1) Business Day after Day), the Company become aware of such inquiry or proposalshall (i) notify such person in writing that terminate access to any Person (other than Parent, the Company is subject Group and their respective Affiliates and Representatives) to an exclusivity agreement any electronic data room maintained by, or on behalf of, the Company Group or its Representatives with respect to any Competing Transaction, the sale Company Group or the Transactions and (ii) exercise any contractual rights available to it (or any other member of the Company that prohibits it from considering such inquiry Group) to cause each Person (other than Parent, its Affiliates and their Representatives) who received non-public or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity confidential information of the person making Company Group in connection with any possible Competing Transaction to cause such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by Persons to promptly return such information to the Company or destroy such information. To the extent any member of the Company Group or its Representatives shall be deemed to be a breach receives any written proposal during the period from the date of this Section 7.05(a) by Agreement to the Company. For clarityearlier of the Closing and the termination of this Agreement in accordance with its terms, with respect to a Competing Transaction, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction shall promptly notify Parent in writing of the material terms of this Section 7.05such proposal and keep Parent informed with respect to such proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Global Business Travel Group, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) until the Closing (or until such earlier time as this Agreement is terminated in accordance with Section 9.1), each of the Company, XX Xxxxxxx and (ii) the termination XX Xxxxxxx Seller, on behalf of this Agreementitself and their Affiliates, including, without limitation, the Company APN Entities, agrees that such Person shall not, and shall direct its Representatives (a) cause their respective officers, directors and employees and (b) use reasonable best efforts to cause their partners, members, managers, agents, advisors and other representatives, in each case not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessknowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, respond to the submission of any proposal of, or offer from any person Person (other than BCAC Purchaser and its affiliatesrepresentatives) relating to a potential (i) the acquisition of all or substantially all of the equity interests or all or substantially all of the assets of XX Xxxxxxx or the CompanyAPN Entities, whether by merger(ii) any liquidation, sale dissolution or re-capitalization of stockXX Xxxxxxx or the APN Entities, sale of assets, (iii) merger or consolidation involving XX Xxxxxxx or the APN Entities or (iv) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person any other Person and information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate of encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or (C) commenceenter into any agreement with respect to a Competing Transaction. Each of the Company, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement XX Xxxxxxx and the Transaction Documents XX Xxxxxxx Seller, on behalf of itself and their Affiliates, including, without limitation, the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company APN Entities, shall, and shall direct its Representatives instruct their respective officers, directors, partners, members, managers, employees, agents, advisors and other representatives not to, immediately cease any and all existing activities, discussions or negotiations with any person conducted heretofore Person (other than Purchaser and its representatives) with respect to any Alternative a Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior Notwithstanding anything to the date hereof executed a confidentiality agreement in connection with itscontrary herein, his this Section 6.5 shall not, directly or her consideration of acquiring the Company to return indirectly, apply or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior relate to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Pre-Closing Reorganization.
Appears in 1 contract
Samples: Stock Purchase Agreement and Plan of Merger (J M SMUCKER Co)
Exclusivity. (a) From The Sellers, the Parent Companies, RRP and RPMC shall, and they each shall cause their respective Representatives and, in the case of the Sellers and the Parent Companies, the Companies, to, immediately cease and cause to be terminated any discussions or negotiations with any third party (other than Buyer and its Affiliates) that may be ongoing as of the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementhereof with respect to an actual or potential Alternative Transaction. In addition, the Company Sellers, the Parent Companies, RRP, and RPMC shall not, and they each shall direct its cause their respective Representatives and, in the case of the Sellers and the Parent Companies, the Companies, not to, subject to Section 8.8(b) below, (i) directly or indirectly, (A) solicit, negotiate withor initiate or knowingly facilitate or encourage (including by way of furnishing non-public information or providing access to its properties, provide books, records or personnel) any nonpublic information regarding the Company’s businessinquiries regarding, or enter into the making of any Contract withproposal or offer that constitutes, or in any manner knowingly encouragewould reasonably be expected to result in, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bii) enter into any agreement regardingor agreement in principle with respect to an Alternative Transaction, continue (iii) engage in negotiations or otherwise participate in any discussions regarding, or furnish or disclose to any person third party any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, however, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to obtaining the ClosingShareholder Approvals, in response to a bona fide Alternative Transaction received by the Sellers or the Sellers’ Representative after the date hereof that was not solicited in violation of this Section 8.8 and that RRP, as the managing shareholder of the Trusts, determines in good faith (after consultation with outside legal counsel and financial advisors) would reasonably be expected A-48 to lead to a Superior Proposal, and, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such Alternative Transaction would be inconsistent with its fiduciary duties under applicable Law and the governing documents of such Seller (as such documents are in effect as of the date hereof), then the Company Sellers’ Representative may (on behalf of Trust I or the Providence Sellers (as applicable)), in response to such Alternative Transaction (x) provide access to its properties, personnel, books and records and furnish information to the Person making such Alternative Transaction and (y) participate in discussions or negotiations with the Person making such Alternative Transaction regarding such Alternative Transaction; provided, that, prior to furnishing such information to or entering into discussions or negotiations with such Person, the Sellers’ Representative shall receive from such Person an executed confidentiality agreement, the terms of which shall be substantially similar to, and not materially less favorable to the Sellers and the Companies than, in the aggregate, those contained in the Confidentiality Agreement; provided, further that the Sellers’ Representative shall promptly (and in no event later than one (1) Business Day after provide to Buyer any non-public information concerning the Company become aware of such inquiry Sellers or proposal) notify such person in writing that the Company is subject Companies not previously provided to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company Buyer or its Representatives shall be deemed that is provided to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person Person making an unsolicited proposal regarding an such Alternative Transaction of the terms of this Section 7.05Transaction.
Appears in 1 contract
Samples: Interest Purchase Agreement (Ridgewood Electric Power Trust Iii)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier termination of this Agreement pursuant to Section 8.1, the Seller and the Company shall not (iand the Company shall cause its Subsidiaries not to), and they shall not authorize, permit or direct any of their respective Representatives or Affiliates to, (a) solicit, encourage, initiate or engage in discussions or negotiations with, or provide any information to, any third party (other than the Closing and Purchaser) concerning any purchase of the Purchased Shares or any merger, sale of all or a material portion of the assets of the Acquired Companies or similar transactions involving any Acquired Company (iian "Acquisition Transaction"), (b) provide non-public information or documentation with respect to the termination Acquired Companies to any Person, other than the Purchaser or its Affiliates or its or their representatives, relating to an Acquisition Transaction or (c) enter into any letter of intent, definitive agreement or other arrangement or understanding with any Person, other than the Purchaser or its Affiliates, relating to an Acquisition Transaction. Promptly after the execution of this Agreement, the Seller or the Company will instruct any third parties to return or destroy all confidential information of the Acquired Companies provided to such party in connection with such third party's consideration of an Acquisition Transaction. In the event that the Seller, the Company or any of their respective Representatives receives an inquiry, proposal or offer with respect to an Acquisition Transaction on or after the date hereof and prior to the Closing, the Seller or the Company shall notprovide the Purchaser with prompt notice thereof (such notice to include the material terms thereof, including the identity of the person or group of persons involved (in each case, except and only to the extent that disclosure of such material terms is restricted pursuant to a confidentiality or non-disclosure agreement executed prior to February 7, 2019 and still in effect on the date of such notice to the Purchaser)). The Seller or the Company shall direct its Representatives not to, directly promptly furnish the Purchaser with a copy of any written offer or indirectly, (A) solicit, negotiate with, provide any nonpublic other information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) that it receives relating to an Acquisition Transaction (in each case, except and only to the extent that such disclosure is restricted pursuant to a potential acquisition confidentiality or non-disclosure agreement executed prior to February 7, 2019 and still in effect on the date of all or substantially all of such notice to the equity interests or assets of Purchaser). Notwithstanding the Companyforegoing, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any the Seller may provide information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that and disclose the execution, delivery details and performance of this Agreement and the Transaction Documents and the consummation terms of the Transactions shall not be deemed a violation Transactions, to its direct and indirect equityholders, pursuant to communications consistent with the past practice of this Section 7.05(a). The Company shall, and shall direct the Seller or its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement Affiliates made in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05similar transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and Closing, (iib) the termination of this AgreementAgreement pursuant to Article X and (c) the date on which Fortive (as defined in the Shareholders’ Deed) validly delivers a Fortive Option Exercise Notice (as defined in the Shareholders’ Deed) to the Company in accordance with the Shareholders’ Deed (a “Fortive Notice”) (provided that if such Fortive Notice is revoked or withdrawn by Fortive and the Fortive Waivers are obtained, the Company following restrictions shall be reinstated), the Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries, indications of interest, offers or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any information to, or otherwise cooperate in any way with, any proposal of, any person (Person or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or assets of the CompanyExchange Act, whether by merger, sale of stock, sale of assets, business combination or otherwise (concerning an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a8.05. For purposes of this Agreement, an “Alternative Transaction” shall mean (A) with respect to the Company, (x) the issuance, sale or transfer to or investment by any Person in any newly issued or currently outstanding equity interest in the Company, (y) the sale or transfer of the assets of the Company and its Subsidiaries to any Person (except, in the cases of clauses (x) and (y), with respect to any de minimis transfers of equity interests or assets or any issuance, sale, transfer, investment of equity interests or assets permitted by the terms of this Agreement), or (z) any merger or business combination between the Company or any of its Subsidiaries, on the one hand, and any other Person, on the other hand and (B) with respect to SPAC, any direct or indirect acquisition of assets of business of any person, whether by way of a purchase of assets or securities or merger, consolidation or otherwise, such as the “initial business combination” under SPAC’s initial IPO prospectus with any third party; provided, that, with respect to the Company, none of the following shall constitute an Alternative Transaction: (I) any de minimis transfers of equity interests or assets or any issuance, sale, transfer, investment of equity interests or assets permitted by the terms of this Agreement or the Share Transfer Agreement; (II) the issuance of any newly issued equity interest in the Company as part of a capital raising of up to approximately $35 million in or around June 2021; (III) the issuance of any newly issued equity interest in the Company as part of a capital raising of up to approximately $20 million in or around December 2021; (IV) the issuance of any newly issued equity interest in the Company where the directors of the Company determine that an injection of funds is reasonably necessary to ensure that the Company is able to pay its debts (and the debts of its subsidiaries) as and when they fall due; (V) the issuance of any newly issued convertible notes which will convert into ordinary shares in the Company as part of a capital raising of up to approximately $75 million; (VI) any such sale or transfer made in accordance with clause 19 of the Shareholders’ Deed; and (VII) any transaction approved by SPAC in writing; provided, further, that, any such issuance pursuant to the foregoing clauses (I) to (V) shall be made in accordance with and subject to any conditions imposed under the Commitment Agreement and the Share Transfer Agreement with such conditions being applicable to the Company for purposes of this Agreement. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will shall promptly request each person Person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information confidential information furnished to such person Person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the earlier of (a) Closing, (b) the termination of this Agreement pursuant to Article X and (c) the valid delivery of a Fortive Notice (unless and until such Fortive Notice has been revoked or withdrawn by Fortive and the Fortive Waivers are obtained), then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 8.05 by the Company a Party or any of its Subsidiaries or its or their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 8.05 by such Party. The Parties agree that this Section 8.05 shall supersede the Company. For clarity, exclusivity provisions included in that certain Letter of Intent entered into by and among SPAC and the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction dated March 5, 2021 in its entirety and such exclusivity provisions shall be terminated as of the terms of this Section 7.05date hereof.
Appears in 1 contract
Samples: Business Combination Agreement (Decarbonization Plus Acquisition Corp II)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (other than BCAC and A) any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries or (B) with respect to Pace, any transaction or series of related transactions under which Pace or any of its affiliates, directly or indirectly, (1) relating to acquires or otherwise purchases any other person, (2) engages in a potential acquisition of business combination with any other person or (3) acquires or otherwise purchases all or substantially all a material portion of the equity interests assets or assets businesses of any other person (in the Companycase of each of (1), (2) and (3), whether by merger, sale consolidation, recapitalization, purchase or issuance of stockequity or debt securities, sale tender offer or otherwise) (each of assetsA and B, business combination or otherwise (an “Alternative Transaction”), other than with the other parties to this Agreement and their respective Representatives, (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)9.04. The Company Each party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each party also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 9.04 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 9.04 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
Appears in 1 contract
Samples: Business Combination Agreement (TPG Pace Tech Opportunities Corp.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to the terms and conditions hereof, none of the Acquired Companies, the Company Seller or their respective Affiliates shall nottake or permit any other Person on its behalf to take any action to encourage, and shall direct its Representatives not to, directly initiate or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, engage in discussions or enter into any Contract negotiations with, or in provide any manner knowingly encourageinformation to, any proposal of, any person Person (other than BCAC Buyer and its affiliatesBuyer’s Representatives) relating to a potential acquisition concerning any purchase of the Acquired Securities, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all of the equity interests or assets of the CompanyAcquired Companies or similar transaction involving the Acquired Companies (other than assets sold in the ordinary course of business, whether by merger, sale subject to the provisions of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.2). The Company Seller shall, and shall direct its cause all of the Acquired Companies and their respective Representatives to, immediately cease terminate any and all existing negotiations or discussions or negotiations with any person conducted heretofore with respect to third party regarding any Alternative Transaction. The Company also agrees that it will promptly request each person proposal concerning any purchase of the Acquired Securities, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all the assets of the Acquired Companies or other similar transaction and terminate the access of any Person (other than the parties hereto and their respective Buyer or its Representatives) that has prior to the date hereof executed a confidentiality agreement any electronic or virtual data room maintained in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the foregoing. The Company shall promptly (and in no any event later than one (1) Business Day after within 48 hours of the Company become aware occurrence of such inquiry or proposalthe relevant event) notify such person the Buyer orally and in writing that if any bona fide inquiries, proposals or requests for information concerning any purchase of the Company is subject to an exclusivity agreement with respect to Acquired Securities, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity assets of the person making such inquiry Acquired Companies or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) other similar transaction are received by the Company or its any Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and and/or (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all 5% or substantially all more of the equity interests outstanding capital stock (on an as converted to Company Common Stock basis) or assets other voting securities representing 5% or more of the combined voting power of the Company, whether by or (3) any conversion, consolidation, merger, sale liquidation, dissolution or similar transaction which, if consummated, would result in any person or other entity or group beneficially owning 5% or more of stockthe combined voting power of the Company, sale of assets, business combination or otherwise other than with BLAC and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Transaction, or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him him, or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC BLAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Business Combination Agreement (Bellevue Life Sciences Acquisition Corp.)
Exclusivity. (a) From During the date of this Agreement and ending on Pre-Closing Period, except for the earlier of (i) the Closing and (ii) the termination of this AgreementContemplated Transactions or as expressly consented to by Parent in writing, the Company and the Company Shareholders shall not, and each shall direct its cause their respective Affiliates and Representatives not to, directly or indirectly, (A) solicit, negotiate withencourage or initiate, provide any nonpublic information regarding the Company’s business, or enter into any Contract withContract, or in any manner knowingly encourage, encourage the submission of any proposal of, or offer from any person (other than BCAC and its affiliates) Person relating to a potential the direct or indirect acquisition of all any Company Shares or substantially all other equity securities of the equity interests Company or any material portion of the assets of the CompanyCompany or its Subsidiaries, whether by in an acquisition structured as a merger, sale of stockconsolidation, exchange, sale of assets, business combination sale of shares or other equity interests, or otherwise (an any such proposal, offer or transaction, a “Alternative TransactionCompany Acquisition”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person furnishing any information with respect to, assisting or cooperate participating in, or knowingly facilitating in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing; provided that no transaction that is permitted under Section 4.2 (Conduct of the Business of the Company) shall not be deemed considered a violation of this Section 7.05(a)“Company Acquisition”. The Company shall, and shall direct cause its Affiliates and Representatives to, immediately (i) cease and cause to be terminated any discussions, negotiations and all existing discussions or negotiations communications with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Parent and their respective RepresentativesMerger Subs) that has prior relate to any Company Acquisition and promptly request the date hereof executed a confidentiality agreement in connection with its, his destruction or her consideration return of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf any nonpublic information of it, him or her prior to the date hereof. If the Company or any of its Subsidiaries provided to such Person; (ii) request each Person that has received confidential information from any of the Company or its Subsidiaries or any of their respective Representatives receives at any inquiry time during the past 12 months pursuant to a confidentiality or proposal similar agreement in connection with such Person’s consideration of a possible Company Acquisition or investment in the Company or its Affiliates to return or destroy all confidential information previously furnished to such Person by or on behalf of any of the Company or its Subsidiaries; and (iii) prohibit any Third Party from having access to any physical or electronic data room relating to any possible Company Acquisition. Notwithstanding the foregoing or any other provisions of this Agreement, the Company Board may consider and participate in negotiations with respect to an Alternative Transaction at unsolicited proposal or offer relating to a Company Acquisition that did not, directly or indirectly, result from any time prior breach of this Section 4.4(a) (Exclusivity) where the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to the Closingtake such action with respect to such offer or proposal as applicable, then would constitute a breach of its fiduciary duties under applicable Law; provided that the Company shall promptly (and in no any event later than one within two Business Days) (1) Business Day after the Company become aware of such inquiry or proposala) notify such person in writing that the Company is subject to an exclusivity agreement Parent if any inquiry, proposal or offer with respect to the sale of a Company Acquisition, or any inquiry, proposal or offer that would reasonably be expected to lead to a Change in Recommendation, is received by the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy any of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalits Representatives, including in each case the identity of the person Person or group of Persons making such inquiry inquiry, proposal or proposal. Without limiting offer, (b) keep Parent reasonably informed of any material developments, discussions or negotiations regarding such inquiry, proposal or offer (including any changes to the foregoingterms thereof) and any Change in Recommendation with respect thereto and (c) upon the request of Parent, the parties agree that any violation reasonably inform Parent of the restrictions set forth status of such inquiry, proposal or offer or a Change in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Recommendation with respect thereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Nuvation Bio Inc.)
Exclusivity. (a) From The Company and the Voting Stockholders agree that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company and the Voting Stockholders shall not, and shall direct its take all action necessary to ensure that none of the Company or any of their respective Affiliates or Representatives does not to, directly or indirectly, through any shareholder, officer, director, employee, agent or otherwise, (Ai) participate in any negotiations or solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate or encourage submission of, or enter into any Contract withentertain, inquiries, proposals or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) offers relating to a potential an acquisition of all or substantially all of investment in or merger or other transaction with respect to the equity interests Company or its stock, business or assets of or any material part thereof (the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative TransactionSubject Matter”), ; (Bii) enter into any agreement regardingor take any action that by its terms or effect could reasonably be expected to adversely affect the ability of the parties hereto to consummate the Transaction on the terms and conditions set forth herein and in the Transaction Documents; or (iii) furnish or authorize any shareholder, continue officer, director, employee, agent or otherwise participate in representative to furnish any discussions regarding, information concerning this Agreement or furnish the Transaction Documents or the Transactions contemplated hereby or thereby to any person Person. The Company and Voting Stockholders will promptly notify the ILOG Group of any unsolicited inquiry, proposal or offer relating to any of the foregoing Transactions and will refrain from engaging in negotiations or providing any information with respect toto such inquiry, proposal or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)offer. The Company shall, and shall direct its Representatives to, the Voting Stockholders will immediately cease and cause to be terminated any and all existing discussions activities, discussions, or negotiations with any person Person conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it and Voting Stockholders will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof all Persons who have heretofore executed a confidentiality agreement in connection with its, his or her such Person’s consideration of acquiring the Company foregoing to return or destroy all Confidential Information confidential information heretofore furnished to such person Persons by or on behalf of itthe Company, him or her prior will enforce all obligations under such confidentiality agreements and upon request, will provide to the date hereofILOG Group copies of certificates from such Persons certifying the return or destruction of such confidential information. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to At the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after Voting Stockholders will Back to Contents assign to the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect ILOG Group, all their rights under all confidentiality agreements relating to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting other transactions involving the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement period between January 20, 2016 and ending on the earlier of (i) Closing Date or the Closing Termination Date, except with respect to this Agreement and (ii) the termination of this Agreementtransactions contemplated hereby, the Company shall agrees that it will not, and shall direct it will cause the Company’s Subsidiaries and the Company’s and its Representatives Subsidiaries’ respective directors, officers, employees, Affiliates and other agents and representatives (including any investment banking, legal or accounting firm retained by it or any of them and any individual member or employee of the foregoing) (each, an “Agent”) not to: (a) initiate, encourage, solicit or seek, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (A) solicitincluding, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encouragewithout limitation, any proposal of, or offer to its shareholders or any person (other than BCAC and its affiliatesof them) relating with respect to a potential acquisition merger, acquisition, consolidation, recapitalization, liquidation, dissolution, equity investment or similar transaction involving, or any purchase of all or substantially all any substantial portion of the equity interests assets or assets of the Companyany securities of, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries (any inquiry such proposal or proposal offer being hereinafter referred to as a “Proposal”); (b) engage in any negotiations concerning, or provide any confidential information or data to, or have any substantive discussions with, any person relating to a Proposal; (c) otherwise facilitate or cooperate in any effort or attempt to make, implement or accept a Proposal; or (d) enter into Contract with respect any Person relating to an Alternative Transaction at a Proposal. If the Company, any time prior of its Subsidiaries or any Agent has provided any Person (other than Buyer’s or the Company’s or its Subsidiaries’ Agents) with any confidential information or data relating to a Proposal, they shall request the Closing, then the immediate return thereof. The Company shall promptly (notify Buyer immediately if any inquiries, proposals or offers related to a Proposal are received by, any confidential information or data is requested from, or any negotiations or discussions related to a Proposal are sought to be initiated or continued with, it, any of its Subsidiaries or any of their respective directors, officers, employees and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject Affiliates or, to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalits Knowledge, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case other Agent. Such notice shall disclose the identity of the person making party making, and the terms and conditions of, any such Proposal, inquiry or proposal. Without limiting the foregoingrequest, the parties agree that any violation and shall include a true and complete copy of the restrictions set forth such Proposal, inquiry or request, if in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05writing.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to ARTICLE XII hereof, the Company shall not, and shall direct its Representatives not tono Seller shall, directly or indirectly, (A) solicittake or permit any other Person on its behalf to take, negotiate withand ATT shall not take, provide and shall cause the ATT Subsidiaries, any nonpublic information regarding Person acting on an Acquired Company's behalf and any member of the Company’s businesssenior management of any of the ATT Subsidiaries not to take, any action, directly or enter into any Contract indirectly, to encourage, initiate, solicit or engage in discussions or negotiations with, or in provide any manner knowingly encourageinformation to, or respond to inquiries, offers or proposals from, any proposal of, any person Person (other than BCAC Buyer and its affiliatesBuyer's representatives) relating to a potential acquisition or such Person's advisors, representatives or prospective lenders, concerning any purchase of the Shares, any merger or recapitalization involving the Acquired Companies, any sale, lease or other disposition of any of the material assets of the Acquired Companies or similar transaction involving the Acquired Companies (other than assets sold in the ordinary course of business), or which would make the transactions contemplated by this Agreement infeasible or impractical. The Sellers shall, and shall cause the Acquired Companies and their officers, directors, agents and representatives to, terminate any and all negotiations or discussions with any third party regarding any proposal concerning any purchase of the Shares, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination Acquired Companies or otherwise (an “Alternative Transaction”), (B) enter into other similar transaction. In the event any agreement regarding, continue Seller or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Acquired Company or any of its Representatives receives representatives receive any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, the Sellers' Representative will immediately notify the Buyer and will provide BCAC the Buyer with the details thereof, including a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Proposal.
Appears in 1 contract
Exclusivity. (a) From and after the date of this Agreement and ending on hereof until the Closing or the earlier of (i) the Closing and (ii) the termination of this Agreement, the Seller and the Company and their respective affiliates shall not, and shall direct its Representatives not towithout the prior written consent of Buyer, directly or indirectly, (Ax) solicit, negotiate withencourage or initiate any contact concerning the submission of any inquiry, provide proposal or offer from any nonpublic information regarding the Company’s business, entity or person (other than Buyer) or (y) participate in any discussions or negotiations or enter into any Contract agreement with, or in provide any manner knowingly encourageadditional non-public information to, any proposal of, any entity or person (other than BCAC and its affiliates) Buyer), in each case relating to a potential acquisition of all or substantially all any of the equity interests following: (i) a merger or assets of the Companyconsolidation with or into, whether by merger(ii) an acquisition, sale of stock, sale of assetsliquidation, business combination or otherwise dissolution of or purchase of any material assets of (an “Alternative Transaction”or any material portion of the assets of), or any equity interest (Bor right to acquire any equity interest) enter into any agreement regarding, continue or otherwise participate in any discussions regardingin, or furnish to (iii) any person similar transaction, involving the Company. The Seller will immediately notify Buyer if any such inquiries, proposals or requests for information with respect toare received by, or cooperate in any way that would otherwise reasonably such negotiations or discussions are sought to be expected initiated with it or any of the other persons or entities referred to lead toabove. The Seller also confirms that, from and after the date hereof until the Closing or the earlier termination of this Agreement, the Seller will cease, and will direct its and the Company’s affiliates, directors, officers, employees, representatives and agents to cease, all discussions with any Alternative Transaction or third parties (Cother than Buyer) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; providedof the matters covered by this Section 6.4. The Seller acknowledges and agrees, for itself and each of the persons and entities referred to above, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation any remedy at law for breach of the Transactions shall not be deemed a violation covenants of this Section 7.05(a). The Company shall6.4 would be inadequate, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect in addition to any Alternative Transaction. The Company also agrees that it other relief which may be available, Buyer will promptly request each person (other than be entitled to temporary and permanent injunctive relief without the parties hereto necessity of proving actual damages and their respective Representatives) that has prior without regard to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy adequacy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05remedy at law.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intelligent Systems Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, Seller, the Company and each Member shall not, and shall direct not permit any of his, her or its respective Affiliates or Representatives not to, directly or indirectly, (Aa) (i) initiate or continue any contact with, (ii) make, solicit, negotiate encourage or respond to any inquiries or proposals by, (iii) enter into or participate in any discussions or negotiations with, provide (iv) disclose, directly or indirectly, any nonpublic information regarding concerning the Business or properties of the Company or the Transactions to, or (v) afford any access to the Company’s businessproperties, books or enter into any Contract with, or in any manner knowingly encouragerecords to, any Person, in the case of each of clauses (i) through (v) above, in connection with any possible proposal of, regarding the direct or indirect sale of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all portion of the equity interests Equity Securities or assets of the Company, whether by merger, Company or Seller (other than the sale of stockinventory in the Ordinary Course of Business), sale of assetsa merger or consolidation involving the Company or Seller, business combination or otherwise any similar transaction, in each case except as contemplated by this Agreement (an “Alternative Transaction”), or (Bb) enter into or participate in any discussions or negotiations regarding, or accept any proposal or enter into any agreement regardingfor, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any an Alternative Transaction; provided. During the Pre-Closing Period, that Seller, the execution, delivery Company and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company each Member shall, and shall direct cause its Affiliates and Representatives to, immediately cease any all discussions and all existing discussions actions which violate or negotiations conflict with any person conducted heretofore with respect to any Alternative Transactionthis Section 5.05. The Company also agrees that it will promptly request each person (other than During the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsPre-Closing Period, his or her consideration of acquiring Seller, the Company to return and each Member shall, promptly following receipt, give Buyer notice of any inquiry, communication or destroy all Confidential Information furnished to such person proposal regarding an Alternative Transaction (and the terms thereof) received by or on behalf of itSeller, him or her prior to the date hereof. If the Company Company, any Member or any of his, her or its respective Affiliates or Representatives. Seller and each Member shall be responsible for any breach of this Section 5.05 by his, her or its Affiliates or Representatives. Seller, the Company and each Member represents that neither he, she or it nor any of his, her or its Affiliates or Representatives receives is a party to or bound by any inquiry or proposal Contract with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.Transaction
Appears in 1 contract
Samples: Unit Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing Date and (ii) the termination of date on which this AgreementAgreement is terminated pursuant to Section 8.1, the Company Seller shall not, and shall direct not authorize or permit any of its Affiliates or any of its or their Representatives not to, directly or indirectly, (Ai) solicit, negotiate withinitiate, provide knowingly facilitate or knowingly encourage any nonpublic information regarding the Company’s businessAcquisition Proposal, or (ii) enter into any Contract discussions or negotiations with, or in provide any manner knowingly encourageinformation to, any proposal of, any person Person concerning a possible Acquisition Proposal or (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Biii) enter into any agreement regarding, continue agreements or otherwise participate in any discussions regarding, other instruments (whether or furnish not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterminated, and shall direct use reasonable best efforts to cause its Affiliates and its and their respective Representatives to, to immediately cease any and cause to be terminated, all existing discussions or negotiations with any person Persons conducted heretofore with respect to to, or that could lead to, an Acquisition Proposal and shall promptly (and in any Alternative Transaction. The Company also agrees that it will promptly request each person event within two (other than the parties hereto and their respective Representatives2) that has prior to Business Days after the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to hereof) demand that all such Persons return or destroy all any Confidential Information furnished to such person provided by or on behalf of it, him or her prior to Seller in connection with any Acquisition Proposal. Until the earlier of the Closing Date and the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect on which this Agreement is terminated pursuant to an Alternative Transaction at any time prior to the ClosingSection 8.1, then the Company Seller shall promptly (and in no any event later than one within two (12) Business Day Days after the Company become aware of such inquiry receipt thereof by Seller or proposalits Affiliates or Representatives) notify such person advise Purchaser orally and in writing that the Company is subject to an exclusivity agreement of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the sale material terms and conditions of the Company that prohibits it from considering such inquiry request, Acquisition Proposal or proposalinquiry, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05same.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Alight, Inc. / Delaware)
Exclusivity. (a) From the date of this Agreement and ending on Date through the earlier of (i) the Closing and (ii) or the valid termination of this Agreement, the Company Company, on behalf of itself and the XXXX Entities, and each Seller Party, agrees that such Person shall not, and shall direct its cause their members, managers, agents, advisors and other Representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessknowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, respond to the submission of any proposal of, or offer from any person Person (other than BCAC with Purchaser and its affiliatesRepresentatives) relating to a potential (a) the acquisition of all or substantially all any equity interests of the equity interests XXXX Entities, (b) any re- capitalization, merger, consolidation, or other business combination involving the XXXX Entities, or (c) or the sale, lease, exchange or other disposition of any significant portion of the XXXX Entities’ properties or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions regarding, or negotiations regarding or furnish to any person any other Person and information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or (C) commenceenter into any agreement with respect to a Competing Transaction. The Company, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance on behalf of this Agreement itself and the Transaction Documents XXXX Entities, and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company each Seller Party, agrees that such Person shall, and shall direct its cause their members, managers, agents, advisors and other Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Purchaser and their respective its Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior a Competing Transaction. In addition to the Closingother obligations under this Section 7.5, then the Company and the Seller Parties, as applicable, shall promptly (and in no any event later than one (1within 2 Business Days after receipt thereof by any XXXX Entity, any Seller Party, or any of their Representatives) Business Day after advise the Company become aware of such inquiry or proposal) notify such person Purchaser in writing that the Company is subject to an exclusivity agreement of any inquiry, proposal or offer from any Person regarding a Competing Transaction, any request for information with respect to a Competing Transaction, or any inquiry that the sale board of directors of any XXXX Entity or Seller Party (as applicable) in good faith believes would reasonably be expected to result in a proposal or offer for a Competing Transaction, the material terms and conditions of such request or inquiry (including the proposed terms of the Company that prohibits it from considering such inquiry or proposalCompeting Transaction), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposalthe same. Without limiting the foregoing, the parties The Parties hereto agree that any violation of the restrictions set forth in rights and remedies for noncompliance with this Section 7.05(a) 7.5 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 the Company or its Representatives shall be deemed Purchaser and that money damages would not provide an adequate remedy to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Purchaser.
Appears in 1 contract
Samples: Equity Purchase Agreement (Insight Enterprises Inc)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article 7, the Company shall not, will not (and shall direct will not cause or permit any Subsidiary or its or their Affiliates or Representatives not to, directly or indirectly, (A) solicit, negotiate initiate, facilitate, participate in, enter into, or continue discussions, negotiations, or transactions with, or encourage or respond to any inquiries or proposals by, or provide any nonpublic information regarding the Company’s businessto any Person relating to or that could reasonably be expect to lead to, or enter into or consummate any Contract withtransaction relating to, or in (i) any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stockthe Company’s or its Subsidiaries’ equity interests or a material portion of the Company’s or its Subsidiaries’ assets, or a similar change in control transaction with respect to the Company or any Subsidiary or (ii) any financing, investment, acquisition, purchase, merger, sale of assetsor any other similar transaction that would restrict, business combination prohibit or otherwise inhibit the Company’s ability to consummate the Transactions contemplated by this Agreement (an the transactions in subsections (i) and (ii), collectively “Alternative TransactionCompeting Company Transactions”). In addition, (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallwill, and shall direct will cause each of its Subsidiaries and its and their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative TransactionCompeting Company Transaction and terminate any such Person’s and such Person’s Representative’s access to any electronic data room. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day 24 hours after the Company become becoming aware of such inquiry inquiry, proposal, offer or proposalsubmission) (A) notify such person in writing that Parent if the Company is subject or, to an exclusivity agreement the Company’s Knowledge, any of its Subsidiaries, Affiliates, or Representatives receives any inquiry, proposal, offer or submission with respect to a Competing Company Transaction after the sale execution and delivery of the Company that prohibits it from considering such inquiry or proposalthis Agreement, and will provide BCAC with a copy (B) notify Parent of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or submitting such proposal. Without limiting the foregoing, the parties agree that any violation offer or submission, and (C) provide Parent with a description of the restrictions set forth material terms and conditions of any such Competing Company Transaction or a copy of such inquiry, proposal, offer or submission (in this Section 7.05(athe case of subsections (B) and (C) only, to the extent not prohibited by any applicable non-disclosure agreement entered into prior to the date of the Exclusivity Agreement, to which the Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) party, as determined in good faith by the Company, in which case the Company shall provide such notice to the maximum extent not prohibited). For clarityIn the event the Company receives an inquiry, proposal, offer or submission with respect to a Competing Company Transaction, the Company may inform shall not, and shall cause its Subsidiaries and Representatives not to, conduct any person making further discussions with, provide any information to, or enter into negotiations with any Person proposing such Competing Company Transaction. The Company agrees that the rights and remedies for noncompliance with this Section 4.3(a) include specific performance, it being acknowledged and agreed that any breach or threatened breach will cause irreparable injury to Parent and that money damages would not provide an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05adequate remedy for such injury.
Appears in 1 contract
Exclusivity. (a) From The Sellers agree that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Sellers shall not, not and shall direct its take all action necessary to ensure that none of their respective Affiliates or any of their respective Representatives not toshall, directly or indirectly, : (Aa) solicit, negotiate withinitiate, provide encourage or agree to any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC the Purchaser, its Affiliates and its affiliatesand their respective Representatives) relating to a potential any direct or indirect acquisition or purchase of all or any material portion of the Business, whether effected by sale of assets, sale of stock, merger or otherwise, other than Inventory to be sold in the ordinary course of business consistent with past practice; or (b) participate in any negotiations or discussions 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 any effort or attempt by any other Person to seek to do any of the foregoing. The Sellers immediately shall, and shall take all actions reasonably necessary to cause each of their respective Affiliates and each of their respective Representatives to, cease and cause to be terminated all existing discussions or negotiations with any Person (other than the Purchaser, its Affiliates and its and their respective Representatives) conducted heretofore with respect to any direct or indirect acquisition or purchase of all or substantially all of the equity interests or assets of the CompanyBusiness, whether effected by mergersale of assets, sale of stock, sale of assets, business combination merger or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish otherwise. The Sellers shall immediately terminate access to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect “data room” provided to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Purchaser, its Affiliates and its and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry Business. Notwithstanding this Section 5.17 or proposalany other provision of this Agreement, and will provide BCAC with a copy of nothing in this Agreement shall prevent or prohibit any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry Sellers, their Affiliates or proposal. Without limiting the foregoing, the parties agree that any violation their respective Representatives from continuing to prepare for an initial public offering of the restrictions set forth in this Section 7.05(a) by Business to occur, if at all, following the Company or its Representatives shall be deemed to be a breach termination of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Forterra, Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Sellers shall not, and shall direct its cause the Hostess Entities and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any information to, or otherwise cooperate in any way with, any proposal ofPerson or other entity or group, concerning any person (other than BCAC and its affiliates) relating to a potential acquisition sale of all or substantially all of the equity interests or any material assets of the CompanyHostess Entities or any of the outstanding Hostess Securities or any conversion, whether by mergerconsolidation, sale of stockliquidation, sale of assets, business combination dissolution or otherwise similar transaction involving the Hostess Entities other than with the Buyer and its Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)6.3. The Company Sellers shall, and shall direct its cause their respective Affiliates and respective Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company Sellers, the Hostess Entities or any of its their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company Sellers shall promptly (and in no event later than one (1) Business Day 24 hours after the Company Sellers become aware of such inquiry or proposal) (A) 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), (B) provide the Buyer a copy of such inquiry or proposal, if in writing, and (C) notify such person Person in writing that the Company is Sellers are subject to an exclusivity agreement with respect to the sale of the Company Hostess Entities that prohibits it them from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a6.3(a) by any of the Company Sellers or its their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a6.3(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Sellers.
Appears in 1 contract
Samples: Master Transaction Agreement (Gores Holdings, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on Date until the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to and in accordance with Section 8.1, the Company shall each Principal and Seller agrees that it will not, and shall direct will cause its Representatives Affiliates and its and their respective directors, officers, managers, members, employees, agents, financing sources, advisors or other representatives (collectively, “Representatives”) not to, directly or indirectly, : (Aa) solicit, negotiate withinitiate or encourage any inquiry, provide proposal, offer, transaction or agreement from or with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Purchaser and its affiliatesAffiliates) relating to a potential acquisition to: (i) the sale or transfer of all or substantially all any portion of the Business or the Purchased Assets (other than the sale of Inventory in the ordinary course of business) or any equity interests or assets other securities of the Companyany Seller; (ii) any acquisition, whether by divestiture, merger, sale of stockshare or unit exchange, sale of assetsconsolidation, redemption, financing, refinancing, or similar transaction involving the Business or any Seller; or (iii) any other business combination involving the Business or otherwise the Purchased Assets or any Seller (each, an “Alternative Acquisition Transaction”); (b) participate in any discussion or negotiation regarding, or furnish any information with respect to, or assist or facilitate in any manner, any Acquisition Transaction; or (Bc) enter into any agreement regarding, continue authorize, approve, adopt, consummate or otherwise participate in effect any Acquisition Transaction. Each Principal and Seller shall immediately cease, and cause to be terminated, any and all contacts, discussions regardingand negotiations between them or any of their Affiliates or Representatives, on the one hand, and any third parties, on the other hand, regarding any of the foregoing, and each Principal and Seller agrees to notify Purchaser promptly if any Person makes any proposal, offer, inquiry or furnish contact related to an Acquisition Transaction to any person of them or any information with respect to, of their Affiliates or cooperate in any way that would otherwise reasonably be expected Representatives from the Agreement Date until the earlier to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that occur of the execution, delivery Closing and performance the termination of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect pursuant to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement accordance with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.058.1.
Appears in 1 contract
Exclusivity. (a) From The Company agrees that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct take all action necessary to ensure that none of its Subsidiaries or any of the Affiliates or Representatives not to, directly of the Company or indirectlyany of its Subsidiaries, (Aa) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessconsider, encourage or enter into any Contract with, or in any manner knowingly encourage, accept any proposal of, any person or offer than constitutes an Acquisition Proposal or (other than BCAC and its affiliatesb) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person any other Person information with respect to, or cooperate in otherwise cooperate, assist or participate in, facilitate or encourage the submission of, any way proposal that would otherwise constitutes, or could reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)an Acquisition Proposal. The Company shall, immediately shall cease and shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore by the Company or its Subsidiaries or any of their respective Affiliates and Representatives with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto shall not, and their respective Representatives) that has prior shall cause its Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If which the Company or any of its Representatives receives Subsidiaries is a party, without the prior written consent of the Acquiror. For purposes of this Agreement, “Acquisition Proposal” means any inquiry offer or proposal with respect to an Alternative Transaction at for, or any time prior to indication of interest in, any of the Closing, then following (other than the Company shall promptly Merger): (and in no event later than one (1i) Business Day after any direct or indirect acquisition or purchase of the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale capital stock of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy any of any such written inquiry its Subsidiaries or proposal all or a detailed summary substantially all of any such verbal inquiry or proposal, including in each case the identity assets of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or any of its Representatives shall be deemed Subsidiaries, (ii) any merger, consolidation or other business combination relating to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform or any person making an unsolicited proposal regarding an Alternative Transaction of its Subsidiaries or (iii) any recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the terms Company or any of this Section 7.05its Subsidiaries.
Appears in 1 contract
Exclusivity. (a) From DK and SBT. Until the date of Closing occurs or this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notis terminated in accordance with its terms, and except in connection with the Transactions, neither DK nor SBT will (and each shall direct cause its Subsidiaries and controlled Affiliates and their respective Representatives not to not), solicit, initiate, negotiate, agree to, directly engage in or indirectly, (A) solicit, negotiate with, provide renew any nonpublic information regarding the Company’s businesscontact concerning any proposal or offer, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way contact that would otherwise reasonably be expected to lead toresult in a proposal or offer, from any Alternative Transaction Person relating to any of the following involving such party and its Subsidiaries (but excluding any intra-group transaction): (a) a liquidation, dissolution or recapitalization, (b) a merger or consolidation, (c) a sale of any of the material assets (or any material portion of its assets) of, or any equity interest in, such party or any of its Subsidiaries, except for the sale of assets in the ordinary course of business consistent with past practice or as explicitly contemplated in this Agreement, (d) any transaction similar to any of the transactions described in sub-sections (a) through (c) or business combination outside the ordinary course of business, or (Ce) commenceany financing, continue investment, acquisition, purchase, merger, sale or renew any due diligence investigation regarding any Alternative Transaction; providedother similar transaction that would restrict, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of prohibit or inhibit such party’s ability to consummate the Transactions shall not be deemed a violation of this Section 7.05(a(each, an “Alternative Acquisition”). The Company shallEach of DK, SBT and their Affiliates and their respective directors, officers, managers, principals, partners, members, employees, agents, consultants, lenders, financing sources, advisors, accountants, or other representatives shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsAcquisition, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal that may reasonably be expected to result in an Alternative Acquisition, request the prompt return or destruction of all confidential information previously furnished with respect to an Alternative Transaction at any time prior Acquisition (except to the Closingextent required by Law or internal compliance policies or procedures) and immediately terminate all physical and virtual data room access previously granted to any Person with respect to an Alternative Acquisition. Each of DK and SBT shall notify DEAC promptly (and in any event within one (1) Business Day) orally and in writing after such Party (or any of its directors, then officers, managers, principals, partners, members, employees, agents, consultants, lenders, financing sources, advisors, accountants or other representatives) receives any proposal for an Alternative Acquisition or any request that is received after the Company date of this Agreement from any Person for non-public information relating to DK or SBT (as applicable) or for access to the business, properties, assets, books or records of DK or SBT (as applicable), in each case, related to an Alternative Acquisition, and such notice shall identify the third party making, and details of the material terms and conditions of, any such proposal for an Alternative Acquisition or request, and each of DK or SBT (as applicable) shall notify DEAC promptly (and in any event within one (1) Business Day) of any material amendments or proposed amendments as to price and other material terms thereof. Furthermore, each of DK and SBT shall promptly (and in no any event later than within one (1) Business Day Day) after receipt or delivery thereof, provide DEAC (or its outside counsel) with copies of all material transaction agreements accompanying such proposal for an Alternative Acquisition or request (including any written, or electronic material to the Company become extent such material contains any financial terms, conditions or other material terms relating to any proposal for an Alternative Acquisition, including the financing thereof). Each of DK and SBT acknowledges and agrees that it is aware, and that such Party and each of its Affiliates and representatives is aware (or upon receipt of any material nonpublic information of DEAC, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each of DK and SBT hereby agree, for itself and on behalf of each of its Affiliates and representatives, that while any of them are in possession of such inquiry material nonpublic information, none of such Persons shall, directly or proposal) notify indirectly, acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of DEAC, communicate such person in writing that the Company is subject information to an exclusivity agreement any other Person, take any other action with respect to the sale DEAC, or cause or encourage any Person to do any of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of Interim Period, (i) JV GmbH and the Closing and (ii) the termination Shareholders shall not take, nor shall they permit any of this Agreementtheir Affiliates or Representatives to take, the Company shall notin each case, and shall direct its Representatives not to, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC PubCo, Merger Sub, SEDA and/or any of their Affiliates and its affiliatesRepresentatives) concerning, relating to or which is intended or is reasonably likely to give rise to or result in any purchase of any equity securities of, or membership interests in, or the issuance and sale of any equity securities of, or membership interests in, PP Holding, JV GmbH or its Subsidiaries (other than any purchases of equity securities by JV GmbH from employees of JV GmbH or its Subsidiaries) or any merger or sale of substantial assets involving the Aerospace Business Assets, PP Holding or JV GmbH or any of its Subsidiaries, in each case, other than the Transactions, a potential acquisition transfer by any Shareholder to any of all its Affiliates, or substantially all of the equity interests as provided in this Agreement (any such purchase, issuance, sale or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”). If JV GmbH, (B) enter into the Shareholders or any of their Affiliates or any of their respective Representatives receives any inquiry or proposal regarding an Acquisition Transaction at any time prior to the Closing, then JV GmbH and the Shareholders, as applicable, shall promptly notify such Person indicating only that it is subject to an exclusivity agreement regarding, continue that prohibits providing any information related to or otherwise participate entertaining any proposals or offers or engaging in any negotiations or discussions regardingconcerning any Acquisition Transaction and, in such event, JV GmbH or furnish to any person any information with respect tosuch Shareholder, or cooperate in any way that would otherwise reasonably be expected to lead toas applicable, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery shall also promptly notify SEDA of such facts and performance of this Agreement circumstances. JV GmbH and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Shareholders shall, and shall direct its cause their Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
Appears in 1 contract
Samples: Business Combination Agreement (SDCL EDGE Acquisition Corp)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement in accordance with its terms, the Company Seller shall not, and shall direct its Representatives not to, directly or indirectly, (A) through any Affiliate, Representative or otherwise, solicit, negotiate with, provide any nonpublic information regarding initiate or encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal ofor offer from any Person, with respect to any person (other than BCAC and its affiliatesa) relating to a potential direct or indirect merger, equity purchase or consolidation of the Business, (b) acquisition or purchase, directly or indirectly, of all or substantially all of the assets of, or a majority of the equity interests in, the Business or assets of the Company, whether by merger, sale of stock, sale of assets, (c) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any other person or entity any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected with, or facilitate any effort or attempt by any person or entity to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative effect a Competing Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Seller shall, and shall direct its instruct all Persons acting on behalf of it to immediately cease any existing activities, discussions and negotiations with any Persons with respect to any of the foregoing. Promptly, and in any event no later than two (2) Business Day following the date of this Agreement, Seller shall, and shall cause their respective Affiliates and Representatives to, immediately cease request the prompt return or destruction of all confidential information previously furnished in connection with a potential Competing Transaction to any and all existing Person with whom Seller or any of their respective Affiliates or Representatives has had discussions or negotiations with any person conducted heretofore with respect to a Competing Transaction in the last twelve (12) months and shall terminate all physical and electronic dataroom access previously granted to any Alternative Transactionsuch Person or its Representatives. The Company also agrees that it will promptly request each person (other than Nothing in this Section 8.14 shall be deemed to limit the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his ability of or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company otherwise prohibit Seller or any of its Representatives receives any inquiry or proposal Affiliates from having discussions with respect to an Alternative Transaction at to, or otherwise taking actions in connection with, any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware potential sale or disposition of such inquiry a majority or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale more of the Company that prohibits it from considering such inquiry consolidated assets, revenue or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity income of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Retained Business.
Appears in 1 contract
Samples: Equity Purchase Agreement (Beacon Roofing Supply Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms, the Company Seller shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, directly or indirectly, (A) any action to solicit, negotiate encourage, initiate or engage in discussions or negotiations with, or provide any nonpublic information regarding the Company’s businessto, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Buyer and/or its Affiliates and its affiliatesRepresentatives) relating to a potential concerning any direct or indirect acquisition of all or substantially all of the equity interests Capital Stock or assets of the any Group Company, whether by or any merger, sale of stock, sale of assets, consolidation or other business combination or otherwise involving any Group Company (each, an “Alternative Acquisition Transaction”), and Seller and its Affiliates and Representatives shall immediately cease and cause to be terminated all existing discussions, negotiations and other communications with any Person (Bother than Buyer and its Affiliates and Representatives) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish with respect to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative such Acquisition Transaction; provided, however, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees Buyer hereby acknowledges that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement of this Agreement, Seller and its Affiliates and Representatives have provided information relating to the Group Companies and has afforded access to, and engaged in discussions with, other Persons in connection with itsa proposed Acquisition Transaction and that such information, his or her consideration of acquiring the Company access and discussions could reasonably enable another Person to return or destroy all Confidential Information furnished to such person form a basis for an Acquisition Transaction without any breach by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach Seller of this Section 7.05(a) by 7.6. During the Company. For clarity, period from the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction date of this Agreement through the earlier of the terms Closing or the termination of this Section 7.05Agreement in accordance with its terms, Seller shall notify Buyer promptly upon the receipt of any proposal, offer, inquiry or contact from any Person (other than Buyer or its Affiliates and Representatives) in respect of any Acquisition Transaction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Acadia Healthcare Company, Inc.)
Exclusivity. (a) From During the date of this Agreement Interim Period, the Seller and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notnot (and the Seller shall cause the Company not to), and none of them shall direct its permit any of their respective Affiliates or Representatives not acting on their behalf to, directly or indirectly, (Aa) solicit, negotiate initiate, seek or encourage any expression of interest, inquiry, offer, or proposal from, (b) initiate or participate in any discussions or negotiations with, provide (c) furnish or cause to be furnished any nonpublic information regarding the Company’s businessor documentation to, or (d) accept any offer from or enter into any Contract agreement or understanding with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Buyer and its affiliatesAffiliates and Representatives) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyany merger, whether by mergerconsolidation, recapitalization, reorganization, sale of stockassets (other than sales of Inventory in the Ordinary Course of Business or the disposition of obsolete and fully-depreciated assets not used in the Business during the twelve (12) months preceding the date hereof), sale of assetsequity interests, or other business combination or otherwise involving the Business, the Purchased Stock, and/or the Company (each, an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement . The Seller and the Transaction Documents Company shall (and the consummation of Seller shall cause the Transactions shall not be deemed a violation of this Section 7.05(aCompany to). The Company shall, and each shall direct its cause their respective Affiliates and Representatives to, (i) immediately cease any and cause to be terminated all existing discussions discussions, negotiations, or negotiations other activities with any person other Person conducted heretofore prior to the date hereof with respect to any Alternative Transaction. The Company also agrees that it will Transaction and (ii) promptly request each person (the return or destruction of all confidential information provided to any other than the parties hereto and their respective Representatives) that has prior Person pursuant to the date hereof executed a confidentiality agreement or otherwise in connection with itsany such discussions, his negotiations, or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofother activities. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company The Seller shall promptly (and in no any event later than one within twenty-four (124) Business Day after the Company become aware hours of such inquiry or proposalreceipt) notify such person Buyer in writing that upon receipt by the Company is subject to an exclusivity agreement with respect to Seller or the sale Company, or any of the Company that prohibits it from considering such inquiry their respective Affiliates or proposalRepresentatives, and will provide BCAC with a copy of any such written inquiry inquiry, offer, or proposal or a detailed summary of any such verbal inquiry or proposalregarding an Alternative Transaction, including in each case which notice shall include the identity of the person Person making such inquiry inquiry, offer or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Exclusivity. (a) From After the date of this Agreement hereof and ending on until the earlier of (i) the Closing Date and (ii) the termination date that this Agreement is terminated in accordance with the terms hereof, the Company shall, and shall cause its Affiliates, directors, officers, managers, employees, agents and advisors to, deal exclusively with the Buyer and its designated representatives regarding the Transactions contemplated hereby or any other acquisition of this Agreementor investment in the Acquired Entities, and the Company shall not, and shall direct instruct its Representatives Affiliates, directors, officers, managers, employees, agents and advisors not to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide engage in negotiations with or encourage the submission of any nonpublic information regarding inquiry, proposal or offer from any Person other than the Company’s businessBuyer and its representatives relating to the acquisition of the Company Common Stock or any significant portion of the assets of any of the Acquired Entities (including any acquisition structured as a merger, consolidation, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”share exchange), (Bb) provide information or documentation to any Person other than the Buyer and its representatives with respect to the Acquired Entities relating to any such acquisition, (c) enter into an agreement with any agreement regarding, continue Person other than the Buyer with respect to any such acquisition or otherwise (d) participate in any discussions negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, and shall direct take commercially reasonable efforts to cause its Representatives Affiliates, directors, officers, managers and employees to, immediately and shall instruct its agents and representatives to, cease any and all existing discussions or negotiations that may be ongoing as of the date hereof with any person conducted heretofore Person (other than the Buyer, its Affiliates and their respective representatives) with respect to any Alternative Transactionsuch acquisition. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after notify the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by Buyer if the Company or its Representatives shall be deemed representatives receive any written offers with respect to be a breach such an acquisition from any Person (other than Buyer, its Affiliates and their respective representatives), including the identity of this Section 7.05(a) by such Person and the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05such offer.
Appears in 1 contract
Exclusivity. (a) From the date hereof until the sooner of the Effective Time and the date of termination of this Agreement in accordance with its terms and ending on subject to the earlier exercise of (i) the Closing Company’s board of directors’ fiduciary duties and (ii) applicable Law, neither the termination of this Agreement, Stockholder Representative nor the Company shall not, and shall direct its Representatives not towill, directly or indirectly, through any officer, director, employee, agent (A) including financial advisors), partner or otherwise, continue, solicit, negotiate entertain, initiate, facilitate or participate in or encourage discussions or negotiations with, provide or the submission of bids, offers or proposals by, any nonpublic information regarding the Person with respect to, whether directly or indirectly, an acquisition of any Acquired Company’s business, or any acquisition of any capital stock or other equity or other interest of or in any Acquired Company or any material assets of any Acquired Company, by any means whatsoever, or enter into any Contract withagreement, arrangement or in understanding regarding any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, and shall direct its Representatives to, the Stockholder Representative will immediately cease and terminate any and all existing discussions or negotiations with any person conducted heretofore third party that are ongoing with respect to any Alternative Transactiontransaction of the type or similar to those described in the immediately preceding sentence. The In addition, from the date hereof until the Effective Time, except as required by applicable Law and the exercise of the Company’s board of directors’ fiduciary duties, neither the Stockholder Representative nor any Acquired Company also agrees that it will promptly request each person will, directly or indirectly, through any Representative or otherwise, disclose any information not customarily disclosed to any Person (other than the parties hereto Parent, Merger Subsidiary and their respective Representatives) that has prior in the Company’s Ordinary Course of Business or afford to any such other Person access to the date hereof executed a confidentiality agreement in connection with itsAcquired Companies’ properties, his books or her consideration records without the prior written consent of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of itParent. Furthermore, him or her prior to the date hereof. If if the Company or any of its Representatives officers, directors, employees, agents (including financial advisors) or partners receives any inquiry written communication regarding the submission of bids, offers or proposal proposals by, any Person with respect to to, whether directly or indirectly, an Alternative Transaction at acquisition of any time prior to Acquired Company, or any acquisition of any capital stock or other equity or other interest of or in any Acquired Company or any material assets of any Acquired Company, by any means whatsoever, between the Closingdate hereof and the Closing Date, then the Company shall promptly immediately notify Parent of the receipt of such bid, offer or proposal. The Company shall give Parent prompt (and but in no event later than one twenty-four (124) Business Day after the Company become aware hours) notice (which notice may be oral, and, if oral, shall be subsequently confirmed in writing) (x) of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy receipt of any such written inquiry bid, offer or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or any of its Representatives or any of its officers, directors, employees, agents (including financial advisors) or partners (which notice shall be deemed to be a breach include the identity of this Section 7.05(asuch person or group and the material terms and conditions of any proposals or offers, including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) by and (y) of the Company. For clarity’s furnishing nonpublic information to, or entering into discussions or negotiations with, such person or group, and shall receive from such Person an executed confidentiality agreement containing terms no less favorable to the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of than the terms of this Section 7.05the confidentiality agreement entered into between the Company and Parent dated as of July 27, 2017 prior to furnishing nonpublic information regarding the Company to, or enter into a confidentiality agreement or discussions or negotiations with, any Person in response to a bona fide, unsolicited written bid, offer or proposal submitted by such Person.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Community Banks Inc)
Exclusivity. Until the Closing Date, neither the Seller nor any of its Representatives or controlling shareholders shall directly or indirectly in any manner (nor permit any subsidiary to) (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreemententertain, the Company shall not, and shall direct its Representatives not to, directly solicit or indirectlyencourage, (Ab) solicit, negotiate with, provide furnish or cause to be furnished any nonpublic information regarding to any Persons (other than the Company’s business, Purchaser or enter into any Contract its Representatives) in connection with, or in any manner knowingly encourage(c) negotiate or otherwise pursue, any proposal ofor discussions for or in connection with any possible sale of any Purchased Interests or of the businesses of the Subject Companies, any person (other than BCAC and its affiliates) relating to a potential acquisition no matter how structured, including without limitation by sale of all or substantially all any significant or controlling part of the equity interests shares in the capital of the Seller, by sale or license of all or any significant part of the property and assets of the either Subject Company, whether or by merger, sale of stock, sale of assets, any merger or other business combination involving the Seller or otherwise (each of the foregoing proposals or discussions, whether written or oral, an “Alternative Transaction”), . The Seller shall immediately notify the Purchaser in writing of (Bi) enter into the receipt of any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any proposal for an Alternative Transaction or (C) commenceany requests for any information relating to the Seller, continue the Subject Companies, their respective business or renew for access to the properties, books or records of either Subject Company by any due diligence investigation regarding any Person which has informed the Seller that such Person is considering making, or has made, a proposal for an Alternative Transaction; provided, and (ii) the terms of any such Alternative Transaction. The Seller shall be responsible for any breach by its Representatives or controlling shareholders of any of the provisions of this Section 9.15. In the event that any of the executionprovisions of this Section 9.15 are breached by the Seller, Idlewood Properties or any of their respective Representatives or controlling shareholders, the Seller (on behalf of itself and Idlewood Properties) shall reimburse the Purchaser for all of its and its Affiliates’ legal, accounting and other professional advisory fees, costs, expenses and other out-of-pocket expenses incurred in connection with the purchase and sale of the Purchased Interests and the preparation, execution and delivery and performance of this Agreement and the Transaction Documents Confidentiality Agreement and all documents and instruments to be executed pursuant to this Agreement and the consummation of Confidentiality Agreement and such reimbursement shall be paid by the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior Seller to the date hereof executed a confidentiality agreement in connection with its, his Purchaser on or her consideration of acquiring before the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to 20th Business Day following the date hereof. If that the Company or any of its Representatives receives any inquiry or proposal Purchaser provides the Seller with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware reasonable evidence of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05out-of-pocket expenses.
Appears in 1 contract
Samples: Purchase Agreement (Tredegar Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company shall not, not (and the Company shall direct cause its Affiliates and Representatives not to), directly or indirectly, : (Aa) solicit, negotiate with, provide initiate or knowingly encourage (including by way of furnishing any nonpublic information regarding relating to the Company’s businessAcquired Companies), or enter into knowingly induce or knowingly take any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise action which could reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or could reasonably be likely to lead to, any Alternative Transaction or an Acquisition Proposal; (Cb) commenceother than informing Persons of the provisions contained in this Section 5.4, enter into, continue or renew participate in any due diligence investigation discussions or any negotiations regarding any Alternative TransactionAcquisition Proposal or otherwise take any action to knowingly facilitate or knowingly induce any effort or attempt to make or implement an Acquisition Proposal; provided(c) approve, that endorse, recommend or enter into any Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the executionCompany to abandon or terminate its obligations under this Agreement; or (d) agree, delivery and performance of this Agreement and the Transaction Documents and the consummation resolve or commit to do any of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shallagrees to notify Parent promptly (and in all cases within twenty-four (24) hours) in writing 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 direct its Representatives to, immediately cease and cause to be terminated any and all 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 commercially reasonable efforts to obtain the return or destruction of, in accordance with the terms of any person conducted heretofore with respect applicable confidentiality agreement, any confidential information previously furnished to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person Person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Representatives. The Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry not release any Person from, or proposal) notify such person in writing that waive any provision of, any confidentiality or standstill agreement to which the Company is subject to an exclusivity agreement with respect to a party, without the sale prior written consent of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sorrento Therapeutics, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (ia) the Closing and or (iib) the termination of this AgreementAgreement pursuant to Section 8.1 (the “Exclusivity Period”), the Company shall Sellers will not, and shall direct its Representatives will not permit the Acquired Companies to, directly and will not authorize any officer, manager, director, Affiliate, employee or indirectly, agent of Sellers or the Acquired Companies to (Ai) solicit, negotiate withinitiate or encourage the submission of inquiries, provide proposals or offers from any nonpublic information regarding Person relating to an investment in or any business combination with the Company’s businessAcquired Companies, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to the sale of a potential acquisition of all or substantially all material portion of the assets and/or equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Acquired Companies (an a “Alternative Competing Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any negotiations, or initiate any discussions regardingor continue any discussions initiated by others, regarding any Competing Transaction, or furnish to any person other Person any information with respect to the assets or business of the Acquired Companies for the purpose of pursuing a possible Competing Transaction with another party or (iii) otherwise participate in, assist, facilitate or encourage any effort or attempt by any other Person to do any of the foregoing. Sellers will not, and will not permit the Acquired Companies to, directly or cooperate in indirectly authorize any way that would otherwise reasonably be expected other Representative to lead totake any action prohibited to Sellers, any Alternative Transaction the Acquired Companies or (C) commencethe officers, continue managers, directors, Affiliates, employees, or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance agents of this Agreement Sellers and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of Acquired Companies under this Section 7.05(a)5.10. The Company shallSellers will, and shall direct its Representatives towill cause the Acquired Companies, and each of their respective officers, managers, directors, Affiliates, employees, and agents, to immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Persons (other than Buyer) conducted heretofore before the date of this Agreement with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than Competing Transaction for the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale duration of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Exclusivity Period.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier to occur of (i) the Closing CLOSING and (ii) the termination of this AgreementAgreement in accordance with its terms, XXXXXX and the Company SHAREHOLDERS shall not, and shall direct ensure that none of its AFFILIATES or their respective Representatives not to, directly or indirectly, : (Aa) solicit, negotiate initiate, seek or encourage any inquiry, offer or proposal from; (b) initiate or participate in any discussions or negotiations with; (c) furnish any information or documentation to; or, provide (d) accept any nonpublic information regarding the Company’s business, offer from or enter into any Contract agreement or understanding with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC PEÑOLES and its affiliatesRepresentatives) relating to a potential acquisition of all any (i) sale or substantially all disposition of the equity interests or assets of the Company, CONCESSIONS whether by merger, way of sale of stockassets or shares of XXXXXX or other amalgamation, consolidation, recapitalization or other business combination transaction involving XXXXXX; or, (ii) amalgamation, consolidation, recapitalization, sale of assets, sale of equity interests or other business combination involving any of the SHAREHOLDERS that would reasonably be expected to delay or otherwise preclude completion of the transactions contemplated by this Agreement (in either case, an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement . XXXXXX and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company SHAREHOLDERS shall, and shall direct cause its AFFILIATES and their respective Representatives to, : (i) immediately cease any and cause to be terminated all existing discussions discussions, negotiations or negotiations other activities with any other person conducted heretofore prior to the date hereof with respect to any Alternative Transaction. The Company also agrees that it will ; and, (ii) promptly request each the return of all confidential information provided to any other person (pursuant to a confidentiality agreement or otherwise in connection with any such discussions, negotiations or other than activities. XXXXXX and the parties hereto and SHAREHOLDERS shall immediately notify PEÑOLES in writing upon receipt by any of them, any of its AFFILIATES or any of their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry offer or proposal with respect to regarding an Alternative Transaction at any time prior to the ClosingTransaction, then the Company which notice shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case indicate the identity of the person making such inquiry offer or proposal. Without limiting proposal and the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05and conditions thereof.
Appears in 1 contract
Samples: www.smv.gob.pe
Exclusivity. Seller shall, and shall cause its representatives, Affiliates and Employees to, immediately cease and cause to be terminated all existing activities, discussions or negotiations with any Persons (aother than the Buyer Parties) with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal. From and after the date of this Agreement and ending on Effective Date until the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with ARTICLE VII, the Company Principal Members shall not, and Seller shall not and shall direct its Representatives employees, Affiliates and representatives not to, directly or indirectly, (Ai) solicitinitiate, negotiate withfacilitate, provide any nonpublic information regarding the Company’s businesssolicit or encourage (including by way of furnishing non-public information), directly or indirectly, inquiries or proposals that constitute, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, (ii) initiate, engage or participate in any way with any third party in any discussions or negotiations regarding, or furnish or disclose any non-public information to any third party in connection with, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation except to notify such third party of the Transactions shall not be deemed a violation existence of the provisions of this Section 7.05(a5.6). The Company shall, and shall direct its Representatives to, immediately cease or (iii) enter into any and all existing discussions or negotiations with any person conducted heretofore agreement with respect to any Alternative Transaction. The Company also agrees Acquisition Proposal or approve or resolve to approve any Acquisition Proposal, or enter into any agreement, arrangement or understanding that it will promptly request each person (other than would require any Principal Member, Seller or AAH Holdings to abandon, terminate or fail to consummate the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person transactions contemplated by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalthis Agreement. Without limiting the foregoing, the parties agree it is agreed that any violation of the foregoing restrictions set forth in this Section 7.05(a) by the Company any employee, Affiliate or its Representatives shall representative, whether or not such Person is purporting to act on behalf of Seller, or otherwise, will be deemed to be a breach of this Section 7.05(a) 5.6 by the Company. For claritySeller, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of and Seller will cause its employees, Affiliates and representatives to comply with the terms of this Section 7.055.6. From and after the Effective Date until the earlier of Closing or the termination of this Agreement, the Principal Members and Seller shall promptly (and in any event within one calendar day following and three business days prior to providing any such Person with any information) notify Buyer in the event that Seller, its Affiliates or any Principal Member receives, directly or indirectly: (i) any Acquisition Proposal; (ii) any request for non-public information relating to Seller by any Person that informs Seller or its Representatives that such Person is considering making, or has made, an Acquisition Proposal; or (iii) any request for discussions or negotiations relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the material terms and conditions thereof and the identity of the other party or parties involved.
Appears in 1 contract
Exclusivity. The Parent and the Vendors agree that from the date hereof until the earlier of: (a) From if the Agreement is terminated other than pursuant to Section 9.1(a)(iv), then the Business Day following the date of such termination, and (b) if the Agreement is terminated pursuant to Section 9.1(a)(iv), then ten (10) Business Days following the date of such termination, neither they nor any of their affiliates will, directly or indirectly, except as expressly permitted by the following sentence, sell, transfer or dispose of, or agree to sell, transfer or dispose of, any Purchased Shares, or solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with, or enter into any agreement, arrangement or understanding with, any Person (in each case, other than the Purchaser) relating to any sale, transfer or disposition of the Purchased Shares (each, a “Competing Transaction”), or take any other action of any kind which would reasonably be regarded as likely to reduce the success of, or materially delay or interfere with the completion of, the transactions contemplated by this Agreement. The Parent and the Vendors will be permitted to sell, transfer or dispose of, or agree to sell, transfer or dispose of, Purchased Shares pursuant to pro rata dispositions (in the aggregate) by the Vendors pursuant to share repurchase programs of MIC in effect from time to time provided that the price of any sale, transfer or disposition is below the Purchase Price. The Parent and the Vendors will, and will cause each of their respective affiliates to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesthe Purchaser) relating with respect to a potential acquisition of all any inquiry, proposal or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingoffer that constitutes, or furnish to any person any information with respect to, or cooperate in any way that would otherwise may reasonably be expected to constitute or lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative a Competing Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Exclusivity. (a) From The Company and each of the Majority Stockholders acknowledge and agree that the Buyer has and will expend considerable money, resources and time in connection with consummating the transactions contemplated hereby. Accordingly, the Company and the Majority Stockholders shall, and shall cause their respective Affiliates and Representatives to: (i) immediately halt any discussions with third parties regarding any transaction the closing of which would be inconsistent with or interfere with or prevent or delay the Closing or that relates to any investment in or acquisition of the stock or a significant portion of the assets of the Company (including by way of merger or any other form of transaction) (each a “Competing Transaction”); and (ii) during the period commencing on the date of this Agreement and ending on with the earlier to occur of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms (subject to Section 10.2 hereof), the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate hold any discussions with, provide any nonpublic information regarding the Company’s businessto, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish respond to any person inquiry made by any information with respect tothird party concerning a proposed acquisition, or cooperate in any way that would otherwise reasonably be expected to lead with, agree to, assist or participate in, solicit, consider, entertain, facilitate or encourage, any Alternative Transaction effort or (C) commence, continue attempt by any third party to do or renew seek any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing, whether directly or indirectly. The Company shall, and shall direct its Representatives to, immediately cease the Majority Stockholders agree not to release any and all existing discussions or negotiations with third party from any person conducted heretofore with respect confidentiality agreement relating to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than such transaction or the parties hereto and their respective Representatives) that has prior standstill provisions of any agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring which the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofis a party. If the Company or any Majority Stockholder is, or if the Company or any Majority Stockholder becomes aware that any of its respective Affiliates or Representatives receives is, contacted in any inquiry or proposal with respect to an Alternative manner by any third party concerning a Competing Transaction at any time prior to the Closing(a “Competing Party”), then the Company and the applicable Majority Stockholder shall promptly (and in no any event later than one (1) Business Day after the Company become aware of such inquiry or proposalwithin 48 hours) notify such person the Buyer in writing that regarding such contact and furnish the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Buyer with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, or, if not in writing, a description thereof, including in each case the identity name of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Competing Party.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Seller shall not, and Seller shall direct require its Representatives directors, officers, employees, agents, advisors or other representatives (including each financial advisor and attorney of Seller) not to, directly or indirectly, (Aa) solicit, negotiate initiate, facilitate, assist or encourage action by, or discussions with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (Person other than BCAC and its affiliates) Buyer relating to a potential the possible acquisition of all the Business or substantially all any of the equity interests Purchased Assets or assets of the Company, whether by any merger, sale of stockreorganization, sale of assetsconsolidation, business combination combination, dissolution, liquidation or otherwise similar transaction involving the Business or the Purchased Assets (an “Alternative Transaction”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions negotiations regarding, or furnish to any person any information with respect to, any effort or cooperate in attempt by any way that would otherwise reasonably be expected Person to lead to, any Alternative Transaction do or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to seek any Alternative Transaction. The Company also agrees that it will Seller shall notify Buyer promptly request each person (and, in any case, within one (1) Business Day) of any inquiries, proposals or offers received by, any information requested from, or any discussions or negotiations sought to be initiated or continued with, Seller or any of Seller’s directors, officers, employees, agents, advisors or other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement representatives concerning an Alternative Transaction indicating, in connection with itssuch notice, his the names of the parties and the material terms and conditions of any proposal or her consideration offer and, in the case of acquiring the Company written materials, providing copies of such materials, all of which shall be deemed to return or destroy all be Confidential Information furnished of Seller. Seller agrees to such person by or keep Buyer informed, on behalf of ita prompt basis (and, him or her prior to the date hereof. If the Company or in any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closingcase, then the Company shall promptly (and in no event later than within one (1) Business Day after of any significant development), of the Company become aware status and terms of any such inquiry proposals or proposal) notify such person in writing that the Company is subject offers. Seller agrees to an exclusivity agreement immediately cease and cause to be terminated any existing activities, discussions or negotiations with respect to any potential Alternative Transaction or similar transaction or arrangement. Seller agrees to take the sale necessary steps to promptly inform the [*] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Company that prohibits it from considering such inquiry Securities Act of 1933, as amended. Confidential treatment has been requested with respect to this information. individuals or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including entities referred to in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach first sentence of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction 4.12 of the terms of this Section 7.05obligations undertaken hereunder.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company Parties shall not, and shall direct cause their respective subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries other than BCAC with the other Parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)7.04. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information confidential information furnished to such person by or on behalf of it, him the Company or her any Company Subsidiary prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) (x) notify such person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.04 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.04 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
Appears in 1 contract
Samples: Business Combination Agreement and Plan of Reorganization (First Reserve Sustainable Growth Corp.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” (within the meaning of Section 13(d) of the Exchange Act), concerning any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries other than BCAC with the other parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)8.07. The Company Each party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each party also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 8.07 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 8.07 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
Appears in 1 contract
Samples: Merger Agreement and Plan of Reorganization (Hennessy Capital Investment Corp. V)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Section 11.01, the Company shall not, and shall direct cause its subsidiaries and its and their respective Representatives not to, directly or indirectly, (A) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage (including by way of furnishing non-public information) or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests Exchange Act, concerning any sale, in a single transaction or a series of related transactions, of any assets of the CompanyCompany or any of its subsidiaries or any capital stock or other equity securities of the Company or any of its subsidiaries, whether by way of merger, sale conversion, consolidation, liquidation, dissolution, initial public offering or similar transaction involving the Company or any of stock, sale of assets, business combination or otherwise its subsidiaries (an “Alternative Transaction”), other than with the other Parties and their respective Representatives, (B) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction, (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, (D) approve, endorse or recommend, or propose publicly to approve, endorse or recommend an Alternative Transaction or (E) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of Equity Interests of the Company or any of its subsidiaries; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.04(a). The Company shall, and shall direct cause its subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become becomes aware of such inquiry or proposal) notify such person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposalproposal and notify Concord of the receipt of an Alternative Transaction including a summary of the material terms and conditions of such Alternative Transaction, and unless the Company is bound by a previously executed confidentially agreement that prohibits such disclosure (in which case, the Company will provide BCAC with use commercially reasonable efforts to seek a copy waiver of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalapplicable confidentiality restrictions). Without limiting the foregoing, the parties agree Company agrees that any violation of the restrictions set forth in this Section 7.05(a9.04(a) by the Company it or any of its subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a9.04(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Business Combination Agreement (Concord Acquisition Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and it shall direct its Affiliates and Representatives not toto take, whether directly or indirectly, any action to (Ai) solicit, negotiate initiate, continue or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofrespond to, or provide information to, any person Person (other than BCAC and Quantum or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger, recapitalization or similar business combination transaction, or any sale of all or substantially all of the equity interests or assets of involving the CompanyCompany and its Subsidiaries, whether by mergertaken as a whole (each such acquisition transaction, sale of stockbut excluding the Transactions, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Cii) commence, continue or renew any due diligence investigation regarding regarding, or that is reasonably likely to give rise to or result in, any Alternative offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that that, the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a10.03(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsrespect to, his or her consideration which is reasonably likely to give rise to or result in, an Acquisition Transaction. Furthermore, if the Company, any of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company its Subsidiaries or any of its their respective Representatives receives any inquiry or proposal with respect to an Alternative Acquisition Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one forty eight (148) Business Day hours after the Company become becomes aware of such inquiry or proposal) notify such person (1) advise Quantum orally and in writing that of such inquiry or proposal (including the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering Person making such inquiry or submitting such proposal, and the terms thereof) and (2) provide Quantum with a copy of such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including if in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05writing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Quantum FinTech Acquisition Corp)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) Effective Time or the termination of date this AgreementAgreement is terminated pursuant to Section 8.1, the Company Sellers shall not, and shall direct cause each of the Transferred Companies and its and their respective Representatives not to, directly or indirectly, (Ai) solicitinitiate, negotiate withsolicit or encourage the submission of any inquiries, proposals or offers, provide any nonpublic non-public information regarding the Company’s businessor data or access to any Person relating to or in connection with a potential Competing Transaction, or enter into make any Contract withother efforts or attempts that constitute, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Competing Transaction, or (C) commence, continue or renew engage in any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or facilitate any person such inquiries, proposals, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, a Competing Transaction, (iii) enter into any merger agreement, letter of intent or other agreement providing for or relating to a Competing Transaction, (iv) enter into any agreement requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement, (v) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any Person other than Buyer, or (vi) agree or publicly propose to do any of the foregoing. The Company shall immediately cease and cause to be terminated all discussions or negotiations existing as of the date of this Agreement with any Person and any other activities conducted heretofore with respect to any Alternative TransactionCompeting Transaction and, subject to the other provisions of this Section 6.5, will use its commercially reasonable efforts to enforce any confidentiality, standstill or similar agreement to which any of the Transferred Companies is a party, including by requesting the prompt return or destruction of all confidential information previously furnished and by using its commercially reasonable efforts to obtain injunctions or other equitable remedies to prevent or restrain any breaches of such agreements and to enforce specifically the terms and provisions thereof in a court of competent jurisdiction. The In addition, the Company also agrees that it will promptly request each person shall immediately terminate access for all Persons to the Data Room (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company Buyer or its Representatives shall be deemed to be a breach Representatives). For purposes of this Section 7.05(a) by the Company. For clarity6.5, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.term “
Appears in 1 contract
Samples: Stock Purchase Agreement (IHS Inc.)
Exclusivity. (a) From the date of this Agreement Signing Date and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company parties hereto shall not, and shall direct cause their respective subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” (within the meaning of Section 13(d) of the Exchange Act), concerning any sale of any material assets of such party or any of its outstanding capital stock or any conversion, merger, consolidation, liquidation, recapitalization, dissolution or similar transaction involving such party or any of such party’s subsidiaries other than BCAC with the other parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Each party shall, and shall direct cause its subsidiaries and its and their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it Each party will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement Signing Date been provided with Confidential Information in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all such Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company a party or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties hereto agree that any violation of the restrictions set forth in this Section 7.05(a) 7.05 by the Company a party or any of its subsidiaries or its or their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.05 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Virgin Group Acquisition Corp. II)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Each Seller agrees that it shall not, it shall cause its Affiliates not to, it shall use its reasonable best efforts to cause its and its Affiliates’ officers, directors and employees not to, and it shall direct its Representatives and its Affiliates’ investment bankers, attorneys, accountants, agents, advisors, representatives and other Affiliates not to, directly or indirectly, (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into knowingly facilitate or encourage the submission of any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or cooperate in take any way other action knowingly to facilitate or encourage any inquiries or the making of any proposal that would otherwise reasonably constitutes, or could be expected to lead to, any Alternative Transaction Acquisition Proposal (except to provide notice of the existence of these provisions) or (Cc) commence, continue or renew enter into any due diligence investigation regarding agreement with respect to any Alternative Transaction; provided, that Acquisition Proposal. Without limiting the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation generality of the Transactions foregoing, each Seller shall, shall not be deemed a violation of this Section 7.05(a). The Company shallcause its Affiliates to, and use its reasonable best efforts to cause its and its Affiliates’ officers, directors and employees, and shall direct its Representatives investment bankers, attorneys, accountants, agents, advisors, representatives and other Affiliates to, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto and their respective Representatives) that has Buyer), conducted prior to the date hereof executed with respect to any Acquisition Proposal. For purposes of this Section 7.11, “Acquisition Proposal” means any offer or proposal for, or indication of interest in, a confidentiality agreement merger, consolidation, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Business, any Sold Company or any of the Sold Subsidiaries, any purchase of at least twenty percent (20%) of (i) the assets of the Business, Sold Companies and the Sold Subsidiaries, taken as a whole, or (ii) any units, capital stock or other equity interests of any Sold Company or any of the Sold Subsidiaries, other than, in connection each case, (x) the transactions contemplated by this Agreement and (y) any offer, transaction or proposal with its, his or her consideration of acquiring the Company respect to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to businesses (other than the Closing, then Business) that would not preclude the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale consummation of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Contemplated Transactions.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into acquisition of 5% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 5% or more of the combined voting power of the Company or (3) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 5% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with GigCapital2 and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC GigCapital2 with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Exclusivity. (a) From and after the date of this Agreement and ending on hereof until the earlier of (ia) the Closing Date, and (iib) the termination of this AgreementAgreement pursuant to Article IX (the “Exclusivity Period”), the Company and any Affiliate, officer, director, agent, or representative of the Company shall not, and shall direct its Representatives not to, directly or indirectly, : (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bi) enter into any written or oral agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations understanding with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Purchasers and their respective Representatives) that has prior other Persons acceptable to the date hereof executed a confidentiality agreement in connection Purchasers Representative) regarding Another Transaction (as defined below); (ii) initiate or continue any negotiations or discussions with itsany person or entity (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding the possibility of Another Transaction; (iii) submit, his solicit, initiate, encourage, participate in, or her consideration of acquiring facilitate any proposal or offer regarding Another Transaction; or (iv) except as otherwise required by law, provide any non-public financial or other confidential or proprietary information regarding the transactions contemplated hereby to any Person (other than to the Purchasers and other Persons acceptable to the Purchasers Representative) whom the Company knows, or has reason to return believe, would have any interest in participating in Another Transaction. As used herein, “Another Transaction” means any issuance, sale, exchange, merger, combination, consolidation, recapitalization, or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or similar transaction involving any of its Representatives receives any inquiry the capital stock, equity interests, long-term debt arrangements, assets or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale business of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy (other than sales of any such written inquiry or proposal or a detailed summary inventory in the ordinary course of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalbusiness). Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives Another Transaction shall be deemed to include the sale of either the Company’s Portland operations or the Company’s Florida operations (a “Division Sale”) even if one Person or group of related Persons does not purchase both operations. The Company shall notify the Purchasers Representative in writing immediately if after the date hereof any Person (other than the Purchasers and other Persons acceptable to the Purchasers Representative) makes any proposal, offer, inquiry or makes or has any contact in respect to Another Transaction or a Division Sale. The parties hereto acknowledge that the Purchasers would be irreparably injured by a breach of this Section 7.05(a) by 5.5 and agree that the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction Purchasers Representative on behalf of all or some of the terms Purchasers shall be entitled, in addition to any other rights or remedies the Purchasers may have under law or by agreement, to equitable relief, including injunctive relief, in the event of a breach of this Section 7.055.5.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Williams Controls Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on to the earlier of (i) the Closing Date and (ii) the termination of this AgreementAgreement in accordance with Article 10, none of the Company Buyer, Merger Sub I or Merger Sub II LLC shall nottake, and nor shall direct its they permit any of their respective Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate, continue or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofrespond, any person (other than BCAC and its affiliates) relating provide information to a potential acquisition of all or substantially all of the equity interests commence or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information due diligence with respect to, any Person concerning, relating to or cooperate in any way that would otherwise which is intended or is reasonably be expected likely to lead togive rise to or result in, any Alternative Transaction offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (Ca “Business Combination Proposal”) commenceother than with the Company, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery Seller and performance of this Agreement their respective Affiliates and the Transaction Documents and the consummation Representatives. Each of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Buyer, Merger Sub I and Merger Sub II LLC shall, and each shall direct cause its respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed with respect to, or which is reasonably likely to give rise to or result in, a confidentiality agreement in connection with its, his or her consideration Business Combination Proposal. During the period from the date of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior this Agreement to the date hereof. If earlier of the Company Closing Date and the termination of this Agreement in accordance with Article 10, if the Buyer, Merger Sub I, Merger Sub II LLC or any of its their respective Affiliates or any of their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closinga Business Combination Proposal, then the Company Buyer, Merger Sub I and Merger Sub II LLC shall promptly (and in no event later than one (1) Business Day 24 hours after the Company become Buyer, Merger Sub I or Merger Sub II LLC becomes aware of such inquiry or proposal) notify such person advise the Seller’s Representative orally and in writing that of such inquiry or proposal (including the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering Person making such inquiry or submitting such proposal, and the terms thereof) and shall not respond to any such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
Appears in 1 contract
Samples: Agreement and Plan of Merger (M III Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement to the Closing the MVA Second Instalment or the date on which this Agreement is terminated pursuant to the Section 8 (2), without the prior consent of the Investor, the Management Vendors shall not directly or indirectly (or through any third party), and ending on shall ensure that their respective affiliate and the earlier Group Companies (including the Listed Company) as of the first instalment of Founding Vendors Transaction shall not directly or indirectly (or through any third party), (i) solicit, initiate, consider, encourage or accept any proposal or offer made by any person or any entity in respect of the Closing following matters (i.e. matters referred to in (A), (B) and (ii) the termination of this AgreementC), the Company shall not, and shall direct its Representatives not to, directly or indirectly, collectively referred to as “Conflicting Transaction”): (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, acquire or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of purchase all or substantially all part of the equity interests or assets of the Group Companies (including the Listed Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)) from the Management Vendors, (B) enter into any agreement regardingmerger, continue consolidation or otherwise other business combination with the Group Companies (including the Listed Company), or acquire or purchase the material assets of the Group Companies (including the Listed Company), or propose any tender offer to the Group Companies (including the Listed Company), (C) enter into capital restructuring, structural restructuring, business restructuring or any other transaction that conflicts with the transactions contemplated under the Acquisition, with the Group Companies (including the Listed Company), or (ii) participate in any discussions regardingdiscussion, conversation, negotiation or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement communication with respect to the sale Conflicting Transaction, or provide any information related to the above matters to any third party, or allow any third party to proceed due diligence with respect to the Group Companies (including the Listed Company) for the Conflicting Transaction, or cooperate, assist, participate in or encourage any efforts or attempts of any third party to conduct the Company that prohibits Conflicting Transaction in any other way, or enter into any agreement or arrangement with any third party for the Conflicting Transaction. The Management Vendors shall immediately cease it from considering such (and shall cause their affiliate and the Group Companies (including the Listed Company) to cease it immediately) and shall cause the termination of all discussions, conversations, negotiations or other communications and provision or sharing of information in relation to any Conflicting Transaction initiated prior to the execution of this Agreement. The Management Vendors shall promptly notify the Investor of any proposal, offer, inquiry or proposal, and will provide BCAC other contacts made by any entity with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case respect to the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Conflicting Transactions.
Appears in 1 contract
Samples: JD.com, Inc.
Exclusivity. (a) From the date of this Agreement The Seller and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its cause the Seller’s Affiliates, the Company’s Subsidiaries and each of their respective officers, directors, employees and Representatives not toto not, directly or indirectly, (Aa) initiate, solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, engage in discussions, negotiate with any Person (whether discussions or negotiations are initiated by Seller, the Company or otherwise) or take any action intended or designed to facilitate any inquiries or the making or implementation of any proposal of, any person or offer (other than BCAC and its affiliateswith the Buyer) relating with respect to a potential acquisition an acquisition, consolidation or similar transaction, or any purchase of all or substantially all any significant portion of the equity interests assets or assets capital stock of the CompanyCompany or any of its Subsidiaries, or any possible business combination therewith (whether by way of merger, sale purchase of capital stock, sale purchase of assetsassets or otherwise) (any such combination, business combination acquisition, proposal or otherwise (offer being hereinafter referred to as an “Alternative TransactionAcquisition Proposal”), (Bb) provide any information or data with respect to the Company or its Subsidiaries to, other than the Buyer, any Person relating to an Acquisition Proposal, (c) enter into an agreement, letter of intent or other writing with any agreement regardingPerson, continue or otherwise participate in any discussions regardingother than the Buyer, providing for a possible Acquisition Proposal, or furnish (d) make or authorize any statement, recommendation or solicitation to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Person (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that other than the execution, delivery Buyer and performance of this Agreement its Representatives and the Transaction Documents Seller’s and the consummation Company’s Representatives) in support of the Transactions shall not be deemed a violation of this Section 7.05(a)or in an effort to facilitate or attempt to make or implement an Acquisition Proposal. The Seller and the Company shall, and shall direct cause each of its Affiliates and Subsidiaries and each of their respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transactionof the foregoing, and shall take the necessary steps to inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.13. The Company also agrees that it will shall notify the Buyer as promptly request each person as practicable (other than and in any event within two (2) Business Days) of the parties hereto and their respective Representatives) that has prior to receipt by the date hereof executed a confidentiality agreement in connection with itsSeller, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of itCompany, him or her prior to the date hereof. If the Company or any of its Representatives receives their Representatives, of any inquiry inquiries, proposals or proposal with respect offers, requests for information or requests for discussions or negotiations regarding any Acquisition Proposal or any inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could reasonably be expected to result in an Alternative Transaction at any time prior to Acquisition Proposal specifying the Closingterms and conditions thereof and the identity of the party making such inquiry, then the Company shall promptly proposal, offer or request for information. and shall, within two (and in no event later than one (12) Business Day after Days of receipt by the Company become aware Seller, the Company, or any of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposaltheir Representatives, and will provide BCAC with furnish a copy of any such written inquiry communications embodying or proposal or a detailed summary of relating to any such verbal inquiry inquiries, proposals or proposaloffers, including in each case the identity of the person making such inquiry requests for information or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company requests for discussions or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05negotiations.
Appears in 1 contract
Exclusivity. (a) From Each Seller has, and has caused the Company to, terminate all existing discussions or negotiations with any third parties conducted prior to the date hereof with respect to any Acquisition Proposal. Neither any of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, Sellers nor the Company shall not, and shall direct its Representatives not towill, directly or indirectly, through any officer, director, employee, representative or agent or any of its Affiliates: (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regardinginitiate, continue or otherwise participate in encourage any discussions regardinginquiries, proposals or offers that constitute, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets, sale of shares of capital stock or similar transaction involving the Company, other than the Transaction (any Alternative Transaction of the foregoing inquiries or proposals being referred to as an "Acquisition Proposal"); (Cb) commencesolicit, initiate, continue or renew engage in any due diligence investigation regarding negotiations or discussions concerning, or provide any Alternative Transactionnon-public information or data to any Person relating to, any Acquisition Proposal; providedor (c) agree to, that approve or recommend any Acquisition Proposal. Each Seller will notify Buyer immediately after receipt by such Seller or the executionCompany of any bona fide Acquisition Proposal or any request for non-public information in connection with a bona fide Acquisition Proposal or for access to the properties, delivery Books and performance of this Agreement and the Transaction Documents and the consummation Records of the Transactions shall not be deemed a violation of this Section 7.05(a)Company by any Person that informs any Seller or the Company that it is considering making, or has made, an Acquisition Proposal. The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also Each Seller agrees that it will promptly request each person (other than not, and will not cause or permit the parties hereto and their respective Representatives) that has prior Company to, release any third party from, or waive any provision of, any confidentiality or standstill agreement relating to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or which any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company them is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalparty. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach The provisions of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms 6.7 shall terminate upon a termination of this Agreement in accordance with Section 7.059.1 hereof.
Appears in 1 contract
Samples: Stock Purchase and Recapitalization Agreement (A21 Inc)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) such time as this Agreement is terminated in accordance with Article IX, except for the termination of transactions contemplated by this Agreement, the Company shall Company, and the Holder Representative will not, and shall direct its Representatives will cause each of their respective Affiliates and representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide enter into or continue any nonpublic information regarding negotiation, discussion, contract, agreement, instrument, arrangement or understanding with any party, with respect to the transactions contemplated by this Agreement, the sale or transfer of voting control of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the equity interests or assets of the Company, whether by or any merger, sale of stock, sale of assets, business combination recapitalization or otherwise similar transaction with respect to the Company or its businesses (an and “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and the Holder Representative shall, and each of the foregoing shall direct its Representatives cause their respective Affiliates, directors, officers, counsel, advisors, agents or other representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Persons (other than Acquiror and Merger Sub) conducted heretofore with respect to any Alternative Acquisition Transaction. The Company also agrees that it will promptly request and the Holder Representative, and each person (other than the parties hereto and of their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsAffiliates, his officers, directors, employees, counsel, advisors, agents or her consideration of acquiring the Company to return other representatives, do not have any agreement, arrangement or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal understanding with respect to an Alternative any Acquisition Transaction (except for this Agreement). The parties hereto recognize and agree that immediate irreparable damages for which there is not adequate remedy at any time prior to law would occur in the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach provisions of this Section 7.05(a) 4.6 are not performed in accordance with the specific terms hereof or are otherwise breached. It is accordingly agreed that in the event of a failure by the Company. For claritya party to perform its obligations under this Agreement, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction non-breaching party shall be entitled to specific performance through injunctive relief, without the necessity of posting a bond, to prevent breaches of the terms provisions and to enforce specifically the provisions of this Section 7.054.6 in addition to any other remedy to which such party may be entitled, at law or in equity.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Albany Molecular Research Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company Seller shall not, shall cause its Affiliates (including the Company Group) not to, shall not authorize or permit any of Seller’s or its Affiliates’ their respective Representatives to and shall direct its Representatives the other Related Parties not to, directly or indirectly, (A) indirectly solicit, negotiate with, provide any nonpublic information regarding initiate or encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal of, or offer from any person Person (other than BCAC Purchaser and its affiliatesAffiliates) with respect to the Company Group, the University, any Service Provider or any assets or properties owned, used or held for use by the Company Group, relating to a potential acquisition any (a) merger or consolidation, (b) acquisition, purchase, sale, disposition or license of all or substantially all any material portion of the assets or equity interests in or assets of of, the CompanyCompany Group or (c) reorganization, whether by mergerrecapitalization, sale of stock, sale of assetsrestructuring, business combination or otherwise other similar transaction (an a “Alternative Competing Transaction”), (B) enter into nor agree to or consummate any agreement regardingCompeting Transaction, continue or otherwise participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any other person or entity (other than Purchaser and its Affiliates and Representatives) any information with respect to, or otherwise cooperate in any way with or facilitate any effort or attempt by any Person to effect a Competing Transaction; provided, however, that any Qualifying Transaction shall not be considered a “Competing Transaction.” Seller shall, and shall cause its Affiliates (including the Company Group) to, instruct Seller’s and its Affiliates’ respective Representatives and the Related Parties to, promptly cease any existing activities, discussions and negotiations with, and the provision of confidential information to, any Persons (other than Purchaser and its Affiliates and Representatives) with respect to any of the foregoing, promptly terminate all physical and electronic data room access granted prior to the date hereof to any such Person or any of their respective Representatives and promptly issue instructions to any such Person who has entered into a confidentiality agreement or restrictions in connection with a potential Competing Transaction that has not expired or been terminated in accordance with its terms to return or destroy any confidential information related to the Company Group, the University or the Business received thereunder in accordance with the terms of such confidentiality agreement. If any of Seller, any Related Party the Company Group or any of their respective Representatives receives any inquiry, proposal or offer from any Person relating to, or that would otherwise reasonably be expected to lead to, any Alternative a Competing Transaction or (C) commenceeach, continue or renew any due diligence investigation regarding any Alternative Transaction; provideda “Transaction Proposal”), that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company Seller shall promptly (and in no any event later than within one (1Business Day) Business Day after the Company become aware advise Purchaser of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalTransaction Proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposalTransaction Proposal and the material terms and conditions of any such Transaction Proposal. Without limiting the foregoing, the parties agree that any Any violation of the restrictions set forth in this Section 7.05(a) 5.13 by any Affiliate or Representative of Seller (including the Company or its Representatives Group) shall be deemed to be a breach of this Section 7.05(a5.13 by Seller. A “Qualifying Transaction” means any inquiry, proposal or offer, or any expression of interest, by any Third Party relating to (A) a transfer or sale of Seller, or any merger, consolidation, recapitalization, tender or exchange offer, or other business combination transaction to acquire Seller, (B) direct or indirect acquisition or purchase by any Person of more than 50% of the Company. For clarityassets, equity or other property of Seller (determined without taking into account the equity or assets of the Company Group, it being understood that such transactions may inform include the equity and assets of the Company Group) or (C) any person making an unsolicited proposal regarding an Alternative Transaction merger, consolidation, recapitalization, liquidation, dissolution or similar transaction which would result, directly or indirectly, in the disposition of more than 50% of the assets, equity or other property of Seller, in each case whether in one transaction or a series of related transactions, in each case of clauses (A), (B) and (C), in which (1) each potential purchaser or other participant participating in any process in relation thereto is bound by a customary confidentiality and non-use agreement covering any information related to the Company Group or the Business and Seller shall use its reasonable best efforts to enforce such confidentiality agreements with respect to information related to the Company Group or the Business, including, following the Closing, at Purchaser’s request and (2) the purchaser or surviving party thereunder agrees to be, or by operation of Law will be, bound by the terms of this Section 7.05Agreement and the Ancillary Documents applicable to Seller and any remaining obligations of Seller under this Agreement and the Ancillary Documents (including the obligation to consummate the Closing) will be fully assumed by such Person (including by operation of Law, if applicable); provided that notwithstanding the occurrence of any Qualifying Transaction, Seller or its Affiliates, as applicable, shall remain responsible and liable for its obligations pursuant to this Agreement and any Ancillary Document to which Seller or its Affiliates, as applicable, are a party.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on the earlier of (i) through the Closing and (ii) the Date or earlier termination of this AgreementAgreement in accordance with Article 10, the Company Seller shall not, and shall direct its Representatives cause the Seller Affiliates and each of their respective directors, officers, employees, advisors and any other representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide engage in or knowingly encourage the initiation of any nonpublic information regarding the Company’s businessinquiry, proposal or enter into any Contract with, or in any manner knowingly encourage, any proposal of, offer from any person (other than BCAC Buyer and its affiliatesAffiliates) relating to a potential any direct or indirect acquisition (in one or more related transactions) of all any assets or substantially all properties of Seller or any Seller Affiliates relating to the equity interests or assets of the Company, Business (whether by merger, sale of stockconsolidation, sale of assetsassets or equity interests or otherwise) or (b) encourage, business combination initiate, engage in or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations with any Third Party regarding, or furnish to any person Third Party any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead toconnection with, any Alternative Transaction or such transaction described in the foregoing clause (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aa). The Company shallSeller also agrees that it, the Seller Affiliates and each of their respective directors, officers, employees, advisors and other representatives shall direct its Representatives to, immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore parties other than Buyer and its Affiliates with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalforegoing, and will provide BCAC with a copy of terminate access to the Virtual Data Room to any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalPerson other than Buyer, including its Affiliates and their authorized representatives. Notwithstanding anything in each case this Section 7.15 to the identity of the person making such inquiry or proposal. Without limiting the foregoingcontrary, (i) Seller, the parties agree that any violation Seller Affiliates and each of the restrictions their respective directors, officers, employees, advisors and other representatives shall be relieved of all of their respective obligations set forth in this Section 7.05(a7.15 if, but only for so long as, Target (as defined in the Arrangement Agreement) by is relieved of its obligations set forth in Section 7.1(a) and Section 7.1(b)(i)-(v) of the Company Arrangement Agreement (and then only to the extent that Target is so relieved of any such obligations), it being understood and agreed that if Target again becomes subject to any of its obligations set forth in Section 7.1(a) and Section 7.1(b)(i)-(v) of the Arrangement Agreement, Seller, the Seller Affiliates and each of their respective directors, officers, employees, advisors and other representatives shall once again be subject to all of their respective obligations set forth in this Section 7.15, and (ii) nothing herein shall prohibit Seller, the Seller Affiliates or its Representatives shall be deemed to be a breach any of their respective directors, officers, employees, advisors and other representatives from taking any actions taken in accordance with Section 7.1 of the Arrangement Agreement; provided, however, that notwithstanding the suspension of any obligations set forth in this Section 7.15, each other provision of this Section 7.05(a) by Agreement shall continue to remain in full force and effect until the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction earlier of the terms Closing or the valid termination of this Agreement pursuant to Section 7.0510.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pembina Pipeline Corp)
Exclusivity. (a) From During the date of this Agreement Interim Period, the Seller Parties and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notnot take, and nor shall direct the Company’s shareholders or any of its Affiliates or Representatives not totake, whether directly or indirectly, (A) any action to solicit, negotiate initiate, continue or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofrespond, any person (other than BCAC and its affiliates) relating provide information to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information commence due diligence with respect to, any Person (other than FPAC and/or any of its Affiliates or cooperate Representatives) concerning, relating to or which is intended or is reasonably likely to give rise to or result in any way that would otherwise reasonably be expected to lead topurchase of any of equity securities of, or membership interests in, or the issuance and sale of any Alternative Transaction equity securities of, or membership interests in, the Company or the Company Subsidiaries (Cother than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries) commenceor any merger or sale of substantial assets involving the Company or the Company Subsidiaries, continue in each case, other than the Transactions or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of as provided in this Agreement and (any such purchase, issuance, sale or merger, an “Acquisition Transaction”). If any Seller Party or the Transaction Documents and the consummation Company or any of the Transactions Company’s shareholders or any of its Affiliates or Representatives receives any inquiry or proposal regarding an Acquisition Transaction at any time prior to the Closing, then the Company shall not be deemed a violation promptly notify such Person indicating only that it is subject to an exclusivity agreement that prohibits providing any information related to or entertaining any proposals or offers or engaging in any negotiations or discussions concerning any Acquisition Transaction and, in such event, the Company shall also promptly notify FPAC of this Section 7.05(a)such facts and circumstances. The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction. During the Interim Period, the Seller Parties shall not, except as expressly contemplated by this Agreement (including the Management Rollup, the Restructuring and the Pre-Deal Dividend), directly or indirectly transfer any interest (direct or indirect, record, beneficial, economic voting or otherwise) in connection with its, his or her consideration of acquiring the Company to return Shares, whether by sale or destroy all Confidential Information furnished to such person exchange, by gift, by operation of law, by pledge or on behalf of it, him encumbrance or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Far Point Acquisition Corp)
Exclusivity. (a) From the date Agreement Date until the earlier of the termination of this Agreement or the Closing, the Sellers shall not, and ending on shall not authorize or permit any of their Affiliates or Representatives to, directly or indirectly, solicit, encourage, initiate, entertain, review, accept, execute, facilitate, approve, provide any nonpublic information for, consider the merits of, or participate in any negotiations, agreements or discussions with respect to any Competing Proposed Transaction or any offer, inquiry, indication of interest or proposal, whether oral, written or otherwise, formal or informal, from any Person, relating to any Competing Proposed Transaction. For purposes hereof, “Competing Proposed Transaction” means the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Everest Plus Business or the Purchased Assets or any investment in or liquidation, dissolution or recapitalization of any Seller or any Subsidiary of any Seller. On the Agreement Date, the Sellers, their Affiliates and their Representatives shall immediately cease and shall cause to be terminated all such existing discussions or negotiations with any parties (other than Purchaser or its Affiliates) conducted heretofore. Through the earlier of (i) the Closing and (ii) the Date or termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company Sellers shall promptly (and in no any event later than one within three (13) Business Day Days after receipt thereof by the Company become aware of such inquiry Sellers or proposaltheir Representatives) notify such person advise Purchaser orally and in writing that the Company is subject to an exclusivity agreement of any Competing Proposed Transaction, any request for information with respect to the sale of the Company that prohibits it from considering such any Competing Proposed Transaction, or any inquiry or proposal, and will provide BCAC contact with any Person with respect to or which would reasonably be expected to result in a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalCompeting Proposed Transaction, including in each case the identity of the person making such inquiry or proposal. Without limiting proposing Person and the foregoing, terms thereof; provided that this provision shall not in any way be deemed to limit the parties agree that any violation obligations of the restrictions Sellers and their Representatives set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach first sentence of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05paragraph.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement or the Closing (the “Exclusivity Period”), the Company Sellers shall not, and shall direct its Representatives cause their respective Affiliates not to, permit any of their respective subsidiaries, Affiliates, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to, directly or indirectly, (Aa) solicit, negotiate initiate, invite or take any action to knowingly facilitate or encourage the submission (whether orally or in writing) of any Acquisition Proposal, (b) enter into or participate in any discussions or negotiations with, provide furnish any nonpublic information regarding relating to the Company’s Business or the Business Entities or any of their properties or assets (other than their products in the ordinary course of business) (whether orally or in writing) or afford access to the properties, assets, books or enter into records of the Business or the Business Entities to, otherwise cooperate in any Contract way with, or in knowingly assist, participate in, knowingly facilitate or encourage any manner knowingly encourageeffort by, any proposal ofthird party that is seeking to make, any person or has made, an Acquisition Proposal or (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bc) enter into any agreement, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement regardingor other similar instrument relating to an Acquisition Proposal. Further, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallSellers will, and shall direct its will cause their Representatives to, notify Buyers promptly after receipt by Sellers or any of their respective Affiliates (including the Business Entities), or any of their respective Representatives, during the Exclusivity Period, of any expression of interest, inquiry, proposal or offer relating to an Acquisition Proposal received from any person. Sellers agree that they and each of their Affiliates will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person Person (other than Buyers) conducted heretofore prior to the date of this Agreement with respect to any Alternative Transaction. The Company also agrees that it will promptly Acquisition Proposal and request each person (other than the parties hereto and their respective Representatives) third party that has prior to the date hereof had heretofore executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company that relates to an Acquisition Proposal to return or destroy all Confidential Information confidential information heretofore furnished to such person third party by Sellers or on behalf of it, him or her prior their behalf. Sellers agree to the date hereof. If the Company or any of its inform their and their Affiliates’ Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth obligations undertaken in this Section 7.05(a) by the Company or its 5.18, and to use commercially reasonable efforts to cause such Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05comply therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Polypore International, Inc.)
